THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 


MANUAL 


POLITICAL  ETHICS, 


DESIGNED  CHIEFLY 


FOR  THE  USE  OF  COLLEGES  AND  STUDENTS  AT  LAW. 


Lex,  communis  reipublicae  sponsio. — Sbnbca. 


BY 

FRANCIS  I^IEBER,  LL.D., 

CORRESPONDING  MEMBER  OF  THE  INSTITUTE  OF  FRANCE,  ETC.; 

AUTHOR   OP   "on  CrVlI.   LIBBRTT  AND   SBLF-GOVBRNMENT,"   "PRINCIPLES  OP  LEGAL  AND 
POLITICAL  INTERPRETATION,"  ETC.,  ETC. 


VOL.   I. 


SECOND    EDITION,    REVISED. 


EDITED  BY  THEODORE  D.  WOOLSEY. 


PHILADELPHIA: 

J.   B.   LIPPINCOTT    &    CO. 

LONDON :  i6  SOUTHAMPTON  ST.,  STRAND. 
1881. 


Entered,  according  to  Act  of  Congress,  in  the  year  1874,  by 

MATILDA    LIEBER, 
In  the  Office  of  the  Librarian  of  Congress  at  Washington. 


I 

mi 


PREFACE  TO  THE  SECOND  EDITION. 


The  Political  Ethics,  of  which  the  second  edition  is  now 
offered  to  the  public,  received  very  high  commendation  from 
some  of  the  first  men  in  the  United  States  on  its  first  appear- 
ance in  1838.  "Chancellor  Kent,"  says  Judge  M.  Russell 
Thayer,  in  his  discourse  delivered  before  the  Historical  So- 
ciety of  Pennsylvania,  "commended  it  in  the  strongest  terms 
for  the  excellence  of  its  doctrines  and  its  various  and  profound 
erudition,  and  observed,  that  'when  he  read  Lieber's  works  he 
always  felt  that  he  had  a  sure  pilot  on  board,  however  dan- 
gerous the  navigation.'  "  In  a  letter  to  Lieber,  Judge  Story 
said  of  it,  "  It  contains  by  far  the  fullest  and  most  correct 
development  of  the  true  theory  of  what  constitutes  the  State 
that  I  have  ever  seen.  It  abounds  with  profound  views  of 
government,  which  are  illustrated  by  various  learning.  To 
me  many  of  the  thoughts  are  new,  and  as  striking  as  they  are 
new.  I  do  not  hesitate  to  say  that  it  constitutes  one  of  the 
best  theoretical  treatises  on  the  true  nature  and  objects  of 
government  which  have  been  produced  in  modern  times,  con- 
taining much  for  instruction,  much  for  admonition,  and  much 
for  deep  meditation,  addressing  itself  to  the  wise  and  virtuous 
of  all  countries.  It  solves  the  question  what  government  is 
best  by  the  answer,  illustrated  in  a  thousand  ways,  that  it  is 
that  which  best  promotes  the  substantial  interests  of  the  whole 
people  of  the  nation  on  which  it  acts.  Such  a  work  is  pecu- 
liarly important  in  these  times,  when  so  many  false  theories 
are  afloat  and  so  many  disturbing  doctrines  are  promulgated." 

714532 

LAW 


4  PREFACE   TO    THE  SECOND  EDITION. 

Besides  these  testimonies  from  the  two  first  jurists  of  the 
generation  next  preceding  ours,  additional  ones  from  the 
historian  Prescott,  from  Hallam,  and  others,  may  be  found 
in  the  discourse  of  Judge  Thayer. 

Dr.  Lieber  suffered  the  edition  which  appeared  more  than 
thirty-three  years  before  his  death  to  become  exhausted, 
without  bringing  a  second  before  the  public.  This  was  not 
owing  to  the  work  having  been  superseded,  nor  to  want 
of  interest  in  the  subject,  nor  to  unattractiveness  of  style 
or  method  of  treatment :  on  the  contrary,  it  has  from  its 
copiousness  of  illustration,  and  its  earnest,  somewhat  unsci- 
entific manner,  a  great  attraction.  But  probably  Dr.  Lieber, 
whose  mind  was  full  of  literary  projects,  never  found  time  to 
get  the  work  again  ready  for  the  press,  or  he  shrank  from  the 
tedium  of  giving  it  a  thorough  revision. 

The  care  of  a  new  edition  was  intrusted  by  Dr.  Lieber's 
family  to  the  present  editor,  who  will  say  a  word  or  two  on 
the  plan  according  to  which  he  has  attempted  to  discharge  his 
office.  It  was  found  that  a  large  mass  of  materials,  consist- 
ing of  original  notes,  quotations  from  other  works  illustrative 
of  the  author's  positions,  and  clippings  from  newspapers  con- 
taining public  documents,  speeches,  or  other  matter  thought 
to  be  important  enough  for  preservation,  was  pasted  into 
a  copy  of  the  work.  In  looking  over  these  materials,  the 
editor  perceived  that  much  of  all  this  was  not  intended  for 
insertion,  but  was  rather  "materiaux  pour  servir"  for  a  future 
revision.  Some  of  this  matter,  again,  had  meanwhile  ap- 
peared in  a  finished  shape  in  the  "  Civil  Liberty."  Very  few 
of  the  author's  notes  modified  his  views  expressed  in  the 
work,  and  might  be  passed  by  without  serious  loss.  And  now 
came  up  the  question  how  far  it  was  expedient  to  increase  the 
size  of  a  book  already  quite  large  enough  for  the  persons  for 


PREFACE   TO    THE  SECOXD   EDITION.  5 

whose  uses  it  was  designed,  and  in  fact,  owing  to  its  copious- 
ness and  discursiveness,  not  seldom  overflowing  its  regular 
channel.  The  attempt  has  been  made  to  satisfy  all  practical 
demands  by  inserting  only  those  notes  of  Dr.  Lieber's  which 
were  judged  to  be  of  primary  value  or  which  bore  in  the  way 
of  modification  or  correction  upon  the  text.  Sometimes  this 
new  matter  appears  in  an  abridged  form ;  sometimes  part  of  a 
note  is  omitted.  In  all  cases  these  noteg  are  marked  in  the 
margin  by  a  star  accompanying  the  numeral  used  for  refer- 
ence. The  notes  in  general  are  put  at  the  foot  of  the  pages 
to  which  they  belong,  instead  of  having  their  places  assigned 
to  them,  as  in  the  original  edition,  at  the  end  of  the  sections. 
A  very  few  notes  by  the  editor  show  their  source  by  being 
enclosed  in  brackets.  The  two  volumes  are  made  nearly 
equal  in  size  by  incorporating  the  earlier  chapters  of  the 
second  part  in  the  first. 

In  the  author's  preface  to  the  first  volume  he  acknowledges 
the  kindness  of  Mr.  George  S.  Hillard  in  helping  him  to  carry 
his  work  through  the  press, — "  a  service,"  he  adds,  "  which 
those  especially  will  know  how  to  appreciate  who  write  in  an 
idiom  which  they  have  not  learned  from  their  mothers'  lips." 
No  aid  could  have  been  more  valuable;  but  a  swarm  of  small 
corrections,  which  needed  a  responsible  editor's  eye,  still  re- 
mained to  be  made.  The  editor  has  not  scrupled  to  make 
them,  while  he  has  been  inclined  to  allow  some  new-coined 
words,  and  some  double  forms  (like  ethic,  ethical,  monarchic, 
monarchical),  to  remain  uncorrected  or  unharmonized.  The 
citations  through  the  book,  so  far  as  they  referred  to  authors 
within  the  editor's  reach,  have  been  verified,  and  in  general 
found  to  be  correct. 

Theodore  D.  Woolsey. 

New  Haven. 


PREFACE  TO  THE  FIRST  EDITION. 


The  work  itself  will  show  the  precise  branch  to  which  I 
have  assigned  the  name  of  political  ethics :  it  remains  for  me 
only  to  give  here  the  assurance  that  the  second  part,  contain- 
ing a  discussion  of  those  many  relations  in  which  a  citizen 
finds  himself  called  upon  to  act,  and  for  which,  however  im- 
portant, the  positive  law  does  not  or  cannot  furnish  a  suf- 
ficient rule  of  action,  will  be  offered  to  the  public  at  the 
beginning  of  the  next  year,  if  I  remain  in  health. 

The  present  vdlume  forms,  as  may  be  conjectured  from  the 
title,  a  separate  whole  of  itself,  and  has  for  that  reason  been 
called  part  first,  and  not  volume  first. 

In  carrying  the  work  through  the  press,  I  have  derived 
great  advantage  from  the  valuable  advice  and  indefatigable 
kindness  of  my  friend  Mr.  George  S.  Hillard,  of  Boston. 
He  has  done  to  me,  and,  I  fondly  hope,  through  me,  to  the 
public,  a  service  which  literary  men  will  know  how  to  appre- 
ciate, especially  those  who  write  in  an  idiom  which  they  have 
not  learned  from  their  mothers'  lips. 

Columbia,  S.  C,  August,  1838. 


CONTENTS. 


BOOK  I. 

ETHICS  IN  GENERAL;  POLITICAL  ETHICS  IN  PARTICULAR. 
CHAPTER    I. 

PAGB 

Science. — Name  and  Subject  of  Ethics.  —  Sympathy  or  Fellow-feeling. — 
The  Human  Intellect.  — Thinking,  Reflection. —Difference  of  Mental 
Action  in  Animals  and  Man.  —  Experience  of  Animals. — Animals  do 
not  exchange  Labor  or  Produce. — Instinct.— Combinatory  Action  of  the 
Animal  Mind *7 

CHAPTER    IL 

Sensuality  and  Rationality. — Man  can  determine  his  own  Action — is  free. — 
Animal  Affection. —  Right  and  Wrong;  Ought  and  Ought  not.  —  Con- 
science.— What  it  is. — Its  Origin. — Locke's  Opinion  discussed. — Univer- 
sality of  Conscience.  —  Uniformity  of  Moral  Codes  and  Views.  —  The 
Thugs  and  Battas. — Can  we  explain  Man's  Moral  Character  by  Sympathy 
alone?    ....         .......••     3' 

CHAPTER    III. 

Ethic  Character  of  Man. — How  does  Conscience  act? — Is  it  alone  an  Oracle 
or  perfect  Index  ?— Practical  Moral  Law. — Man's  Individuality. — Morality 
founded  upon  it. — Our  Ethic  Character  is  inalienable,  hence  our  Respon- 
sibility likewise.— Ethic  Experience  and  Skill.— Various  Ethic  Systems    .     53 

CHAPTER    IV. 

Man,  a  Being  having  his  own  End  and  Purpose,  or  an  Ens  autoteles. — 
Natural  Law. — Its  only  Axiom. — Its  Object. — Difference  of  Natural  Law 
and  Ethics. — Science  of  Politics. — Disastrous  Consequences  of  confound- 
ing Natural  Law  and  Politics  proper.— Good  Faith  necessary  wherever 
Man  acts.— Political  Ethics. — Its  relation  to   the  other  Sciences  which 

treat  of  Man "7 

9 


lO  CONTENTS. 


CHAPTER    V. 

PAGB 

Does  Political  Ethics  deserve  to  be  treated  separately?  —  Can  Ethics  be 
applied  to  Politics? — The  People  at  large  ought  to  know  their  Political 
Duties.  —  Political  Ethics  not  for  the  Statesman  alone.  —  Demoralizing 
Effect  of  a  politically  debased  Society  upon  the  Individual.  —  Political 
Ethics  especially  important  in  Free  Countries. — Attempts  of  Govern- 
ments and  Nations  to  justify  Public  Crimes,  which  proves  that  Men  agree 
that  public  Acts  ought  to  be  founded  on  Ethic  Grounds. — Ethics  cannot 
be  applied  to  Politics  precisely  as  to  Private  Relations.  —  Mere  Expedi- 
ency; mere  Theory       ..........       7^ 

CHAPTER    VI. 

Does  Religion  or  Common  Sense  dispense  with  Ethics  in  Politics? — 
Hume's  View  of  Common  Sense. — What  is  Common  Sense?  —  It  does 
not  dispense  either  with  a  proper  Knowledge  of  Politics  and  Ethics,  or 
with  constant  Exertion  and  much  Industry     ......       90 


BOOK  II. 

THE      STATE. 

CHAPTER    I. 

The  Law  is  ever)'where.  —  What  is  Law?  —  Sociality.  —  Origin  of  the 
Family. — Of  Society. — Everything  conspires  to  lead  Men  to  Society. — 
Strong  and  natural  Ties  in  Family  Affection,  Language,  Division  and 
Union  of  Labor 99 

CHAPTER    II. 

Property. — Mine  and  Thine. — Origin  of  Property. — Various  Titles. — Indi- 
vidual Property  is  necessary  for  Man.  —  Does  not  arise  from  Man's 
Iniquity. — Man  never  lives  or  can  live  without  Property. — Slow  Devel- 
opment of  Property.  —  International  Acknowledgment.  —  Copyright. — 
Property  among  Agriculturists.  —  Civilization  and  Population  depend 
upon  it  ............     108 

CHAPTER    III. 

Civilization. — What  does  it  consist  of?  —  Requires  Society.  —  It  develops 
Man,  is  his  truly  Natural  State.  —  Futile  Dreams  of  Innocence  and  Vir- 
tue without  Civilization.  —  Shepherds  are  savage.  —  Destiny  of  Woman. 

High   Importance   and    Sacred    Character  of   the  Family. — Virtues 

developed  by  it.  —  The  true  Nursery  of  Patriotism  .         .         .         .127 


CONTENTS.  1 1 


CHAPTER    IV. 

PACK 

What  is  the  State  ? — By  what  Characteristics  does  it  differ  from  the  Family? 
— The  State  a  Society. — Various  Human  Societies,  according  to  the 
various  Relations.  —  Relations  of  Consanguinity,  Exchange,  Comity, 
Intellectual  Communion,  of  Right. — What  is  Right? — The  State  is  the 
Society  of  Right.  —  The  Just  is  its  Fundamental  Idea.  —  Objects  of  the 
.State.  —  What  is  Protection?  —  The  State  requires  General  Rules;  its 
Members  are  not  absorbed  by  it ;  every  one  has  Claims  upon  it ;  it  is  a 
Moral  Society;  it  exists  of  Necessity.  —  The  State  remains  a  Means. — 
The  Individual  above  the  State;  the  State  above  the  Individual.  —  The 
State,  as  such,  has  Rights  and  Obligations;  the  State  does  not  make 
Rights,  but  acknowledges  them.  —  Civilized  States  far  the  most  power- 
ful.—  Man  by  Nature  a  Political  Being.  —  Man  never  exists  without  the 
State.  —  The  State  is  no  Insurance  Company.  —  Protection  of  Life  and 
Property  not  the  only  Objects,  nor  the  highest 145 

CHAPTER    V. 

Legitimate  Objects  of  the  State.  — Danger  of  Intermeddling  Legislation; 
Instances.  —  Primordial  Rights  and  Claims. —  Physical  Life  and  Health, 

—  Law  of  Necessity.  —  Personal  Liberty.  —  Right  of  Individuality;  no 
Absolute  Obedience  possible.  — Right  of  .Share  in  the  Protection  of  the 
State. — Jural  Reciprocity. — Right  to  be  judged  by  Laws,  and  Laws  only. 

—  Right  of  Communion  or  Utterance. —  Liberty  of  the  Press.— Right  of 
Morality. —  Immoral  Laws,  no  Laws. —  Right  of  Honor,  Reputation. — 
Family.  —  Religion,  Creed,  Worship.  — Right  of  Property,  Acquisition, 
Exchange.  —  Right  of  Emigration.— Inalienable  Rights. —  State  cannot 
take  Revenge;  the  Crown  cannot  feel  Wrath.  —  Political  Aljsurdity  of 
speaking  of  King's  Anger  or  Nation's  Revenge  as  Political  Body  .         .172 

CHAPTER    VI. 

The  State  necessarily  comprises  all.  — No  one  can  declare  himself  out  of 
it;  no  one  can  be  considered  out  of  it. — Different  Meanings  attached  to 
the  word  State  at  different  Periods. — Mankind  divided  into  many  States. 
—Why  ?— Sovereignty.— Definition.— There  were  never  individual  Sov- 
ereigns before  the  Formation  of  the  State. — Who  is  the  Sovereign? 

Manifestations  of  Sovereignty.  — Public  Opinion,  Generation  of  Law, 
Power. — Public  Opinion. — Law  :  what  does  it  consist  of? — Public  Will. 
—Nature,  Common  Sense,  Custom  and  Usage,  Common  Law,  Charters, 
Codes  and  Statute  Law,  Decisions,  Precedents,  Interpretation,  Aulhentic 
Interpretation,  Digests.— Judge-made  Law,  so  called.— Power  rests  with 
Society,  cannot  rest  anywhere  else.  —  Government,  what  it  is.— Various 
Kinds  of  Governments  as  to  their  Origin.  —  Always  rest  on  Opinion. — 
Importance  of  distinguishing  State,  Government,  Sovereignty,  Supreme 


12  CONTENTS. 

FAGB 

Power. —  Divine  Right. —  Monarchs  called  of  God. —  Frederic's  and  Jo- 
seph's View.  —  No  Monarch  ever  was  or  can  be  Sovereign  in  the  true 
Sense.  —  Meaning  of  the  word  Sovereign  if  used  of  the  British  Mon- 
arch.—  Declaration  of  Rights. — True  Relation  of  Monarch  and  People. 
— Can  the  King  really  do  no  Wrong,  constitutionally  or  legally?  — 
He  can  do  so,  and  it  has  been  decided  that  he  can. — British  Monarch 
the  Fountain  of  Honor. — Its  Meaning. — Different  Title  of  Monarchs; 
some  of  the  Land,  some  of  the  People  ......     210 

CHAPTER    VII. 

Public  Power. — Why  necessary. — Why  must  it  be  restrained  ? — Abuse  of 
Power  general. — Man  justly  loves  to  act,  to  produce,  to  effect  something. 
— It  is  the  inherent  Character  of  all  Power  to  increase  if  unchecked. — 
Power  delights,  and  is  not  willingly  given  up. — Power,  in  all  Men  and 
all  Spheres,  is  irritated  at  Opposition. — Man  judges  according  to  his  Posi- 
tion, those  in  Power  differently  from  those  out  of  it. — Power  is  in  its 
Character  imposing        ..........     264 

CHAPTER    VIII. 

Legitimacy  of  Governments.  —  Governments  de  jure,  de  facto.  —  Divine 
Right. — Legitimacy  of  Governments  with  Reference  to  International 
Intercourse. — Can  the  Legitimacy  of  Government  be  ascertained  !)y  its 
Origin  ? — Filmer,  Locke,  Rousseau,  Haller. — The  Origin  of  all  States 
essentially  the  same  ;  yet  Infinity  of  Circumstances  which  influence  and 
modify  its  Development. — Ancient  View  on  the  Origin  of  Governments. 
— Aristotle,  Polybius. — Various  Theories.  —  Social  Contract. — Various 
Facia. — Hobbes,  his  Error. — Theocratic  Theoiy 275 

CHAPTER    IX. 

View  of  the  Origin  and  Character  of  the  State  in  the  Middle  Ages. — 
Dante. — Thomas  More. —  Bodinus.  —  The  Netherlands  first  proclaim 
broadly  that  Monarchs  are  for  the  Benefit  of  the  People,  and  may  be 
deposed. — The  Development  of  the  Idea  of  the  Sovereignty  of  the 
People  owing  to  the  Jesuits.. — William  Allen. — Persons. — BellaiTnin. 
— Jesuits  defend  Regicide  under  certain  Circumstances. — Mariana. — 
Suarez. — Luther. — Calvin. — Bacon. — English  Revolution  a  great  Period 
for  liberal  Ideas  in  Politics. — Puffendorf. — Leibnitz. — Montesquieu. — 
Hume. — Quesnay. — Turgot  and  Malherbes. — Mably. — Adam  Smith. — 
Blackstone. — Delolme. — Bentham. — Hallam. — Revolution  of  1830        .     297 

CHAPTER    X. 

Various  Standards  of  great  Political  Periods. — The  Government  must  de- 
pend upon  given  Circumstances  and  Materials. — Which  is  the  best  Gov- 
ernment ? — Errors  as  to  an  Ideal  Government. — Governments  cannot 


CONTENTS.  13 


FAGS 


be  made  in  the  Closet,  or  decreed. — Characteristics  of  a  good  Govern- 
ment.— Civil  Liberty. — What  it  is. — Errors  respecting  it. — Majority  and 
Minority. — The  Majority  are  not  the  People. — The  Athenians  checked 
their  own  Power. — Great  and  true  Value  of  Representative  Government. 
— Whoever  has  the  Power,  One,  Many,  or  the  Majority,  may  abuse  it, 
and  must  be  checked 3'° 

CHAPTER    XI. 

Political  Atony  one  of  the  greatest  Evils. — The  Ancient  Tyrannies. — 
Variety  of  Means  to  check  the  Abuse  of  Power. — Can  Power  be  con- 
trolled ? — Who  controls  the  controlling  Power  ? — Constitutions. — Are 
written  Constitutions  of  any  Value  ? — Constitutions  are  Indispensable. 
— Various  Reasons  why  and  Circumstances  when  Written  Constitutions 
are  desirable  or  necessary. — Division  of  Power:  Legislative,  Executive, 
and  Judiciary.  —  Great  Danger  resulting  from  Confusion  of  these 
Branches,  in  Republics  as  much  as  in  Monarchies. — Importance  of  the 
Separation  of  the  Executive  from  the  Legislature. — Vast  Importance  of 
an  Independent  Judiciary. — What  does  Independent  Judiciary  mean  ? 
— The  farther  Political  Civilization  advances,  the  more  independent  does 
the  Judiciary  become 334 

CHAPTER    XII. 

Classification  of  Greek  Constitutions  by  Aristotle. — Classification  of  Gov- 
ernments according  to  the  Number  of  those  who  hold  the  Supreme  Power, 
— Polity:  Meaning  in  which  it  is  used  in  the  Present  Work. — Autarchic 
and  Hamacratic  Polities. — Autarchy,  Hamarchy. — Absolutism.— Demo- 
cratic Absolutism. — Different  Operation  in  the  Autarchy  and  Hamarchy. 
— Hamarchy  materially  republican  in  its  Character. — The  Polity  of 
England  is  a  Hamarchy. — The  Polity  of  the  United  States  likewise. — 
Hamacratic  Character  of  the  City  of  Rome. — Hamarchy  rises  with  the 
Teutonic  Race. — Anglican  Hamarchy 35 1 

CHAPTER    XIII. 

Political  Spirit  of  the  Ancients. — The  Ancients  had  not  what  we  call  Law 
of  Nature. — Essential  Difference  between  the  View  of  the  State  taken 
by  the  Ancients  and  the  Modems. — Greek  Meaning  of  Liberty  :  absolute 
Equality,  even  disavowing  the  Inequality  of  Talent  and  Virtue. — Protec- 
tion of  the  Individual,  first  object  of  the  Moderns;  the  Existence  of  the 
State,  of  the  Ancients :  hence  high  Importance  of  Judicial  Forms  with 
the  Moderns. — He  who  has  Supreme  Power,  be  it  One,  Many,  or  All, 
must  not  sit  in  Judgment. — Greek  Laws  often  very  oppressive  to  the 
Individual. — The  most  private  Affairs  frequently  interfered  with. — 
Socrates'  View  of  the  State. — Lavalette,  Hugo  Grotius,  and  Lord  John 
Russell,  on  the  other  hand.  —  Ostracism.  —  Causes  of  the  powerful 
Change  in   the  View  of  the  State.  —  Christianity.  —  Conquest  of  the 


14  CONTENTS. 


PAGB. 


Roman  Empire  by  Teutonic  Tribes. — Feudalism. — Increased  Extent  of 
States. — Printing. — Increased  Wants  of  Government. — Taxation. —  Rise 
of  the  Third  Estate. — Increased  Industry. — Discovery  of  America         .     358 


IF  J^  lE^  T     II. 

BOOK  III. 

POLITICAL   ETHICS   PROPER. 

CHAPTER    I. 

Reciprocal  Relation  of  Right  and  Obligation. — The  more  Liberty,  the 
more  Rights,  hence  the  more  Obligations. — Danger  of  Absolutism  in 
Republics,  without  due  Attention  to  Political  Ethics. — Additional  Rea- 
son of  their  Importance  derived  from  our  Race. — Another  Reason, 
from  the  Period  in  which  we  live  and  the  Direction  which  the  Study  of 
Political  Sciences  of  late  has  taken: — Private  Morality  necessary  for 
Public  Success,  especially  in  Free  States,  yet  not  sufficient. — Justice 
and  Fortitude  or  Perseverance  chief  Virtues  in  Political  Life. — Justice 
the  Basis  of  the  other  Virtues. — Reputation  of  Individuals  and  States 
chiefly  founded  upon  it. — Power  and  Passion  equally  apt  to  blind  against 
Justice. — Justice  afTords  Power. — Coteries  are  unjust  because  they  see 
distortedly. — May  we  do  what  the  Law  either  positively,  or  by  not  pro- 
hibiting, permits  ? .     383 

CHAPTER    IL 

Perseverance. — Justus  et  tenax.  —  Necessity  and  great  Effects  of  Perse- 
verance.—  To  persevere,  our  Purpose  ought  to  be  good,  the  Means 
adapted  to  the  Purpose  and  the  Purpose  to  the  Means ;  the  Means 
concentrated. — Repeated  Action  may  supply  Power;  undaunted  Perse- 
verance may  finally  decide  by  a  Trifle. — Fortitude. — Alarmists. — Ex- 
citement and  Injustice. — Rabies  civica. — Calmness  of  Soul. — Political 
Fretfulness.  —  Great  Souls  are  calm. —  Peevishness.  —  Political  Grum- 
blers (Frondeurs). — Chief  Points  respecting  Firmness. — Consistency. 
— Inconsistency. — Obstinacy 412 

CHAPTER    III. 

Moderation. — Excitement. — Passion. — Revenge. — Obscuration  of  Judg- 
ment by  Excitement. — Honesty. — Veracity. — Kant's  Opinion. — Hon- 
esty in  Money  Matters. — Desire  of  Wealth. — Love  of  Independence. — 
Poverty;  its  Effect  on  Public  Men  in  ancient  and  in  modern  Times. 
— Necessity  of  being  free  from  Debt. — Liberality. — Peculation. — Bane 
of  Public  Covetousness. — Public  Defaulters. — Periods  of  Speculation. — 
Smuggling    ........•.••     43^ 


PART   I. 

ETHICS   GENERAL   AND    POLITICAL. 


IS 


POLITICAL   ETHICS. 


BOOK    I. 

ETHICS  IN  GENERAL;  POLITICAL  ETHICS  IN  PARTICULAR. 
CHAPTER    I. 

Science. — Name  and  Subject  of  Ethics. — Sympathy  or  Fellow-feeling. — The 
Human  Intellect. — Thinking,  Reflection. — Difference  of  Mental  Action  in 
Animals  and  Man. — Experience  of  Animals. — Animals  do  not  exchange 
Labor  or  Produce. — Instinct. — Combinatory  Action  of  the  Animal  Mind. 

I.  A  SCIENCE  is  a  branch  of  knowledge  or  collection  of  ideas 
systematically  developed  according  to  principles  peculiar  to 
the  subject-matter  itself  A  science  is  independent  within 
its  own  sphere.  Everything  is  worthy  of  being  scientifically 
investigated,  that  is,  worthy  of  being  investigated  as  to  its 
essentials,  separately  and  for  itself,  with  the  view  of  arriving 
at  principles  and  laws.  Every  principle  and  law  thus  arrived 
at  extends  the  sphere  of  knowledge,  expands  the  human  mind, 
increases  the  stock  of  civilization,  and  is  emphatically  useful. 
We  are  uselessly  employed  when  occupying  ourselves  with 
accidentals ;  usefully,  when  with  the  essentials  of  things,  i.e. 
with  their  nature,  that  which  makes  them  what  they  are. 
This  constitutes  the  difference  between  idle  curiosity  or  a 
pedantic  accumulation  of  facts,  and  scientific  inquiry  —  that 
noble  employment  of  man.^     Whether  we  are  worthily  occu- 


'  A  person  in  England  has  counted  how  often  the  word  And  occurs  in  the 
Bible.  Yet  facts  ascertained  by  mere  curiosity  may  be  used  by  others  for  higher 
purposes :  for  instance,  in  this  case,  if  a  scholar  were  desirous  of  showing  how 
late  children  or  nations  free  themselves,  in  using  prose,  from  a  continual  re- 

2  17 


1 8  ETHICS  IN  GENERAL. 

pied  does  not  depend,  in  an  abstract  point  of  view,  upon  the 
subject  we  inquire  into,  but  upon  the  mode  and  object  of 
inquiry;  yet  it  may  depend  upon  the  subject  relatively  to 
other  important  considerations.  Whether  the  subject  be 
mind  or  matter;  the  soul,  thought,  appetites,  the  organs  or 
the  size  of  man;'  the  laws  of  nature  or  society,  truth,  error, 
or  fiction  ;  things  as  they  are  or  the  changes  through  which 
they  have  become  such — everything  may  be  scientifically  in- 
vestigated, is  worthy  of  being  so,  and  contributes  essentially 
to  our  knowledge  of  the  nature  of  things,  their  connection, 
their  order,  and  the  Being  that  prescribed  it. 

II.  That  science  which  treats  of  what  is  good,  noble,  and 
meet,  wise  and  right,  because  it  is  good,^  as  well  as  the 
opposite  of  these,  of  the  origin  of  our  notions  of  the  good^ 
noble,  and  meet,  the  peculiar  nature  of  man,  without  which  he 
could  not  have  had  these  notions,  and  his  consequent  essential 
attributes,  the  duties  flowing  from  these  attributes,  and  the 
relations  necessarily  founded  upon  our  knowledge  of  the  good 
— that  science  is  called  ethics  or  morals.  Ethics  constitutes 
a  science,  which  treats  of  our  moral  character;  of  the  good 
as  an  idea  within  us,  and  its  application  to  our  appetites  and 
impulses,  dispositions,  actions,  and  habits.  The  former — the 
good  as  an  idea  within  us  and  man's  moral  nature — forms  the 
subject  of  the  metaphysical  or  strictly  philosophical  part  of 
ethics ;  the  latter,  its  application  to  our  natural  dispositions 


currence  to  the  conjunction  And.  So  may  scientific  minds  make  proper  use  of 
facts  collected  for  very  different  purposes  :  for  instance,  when  Hippocrates 
studied  the  votive  tablets  in  the  Grecian  temples,- containing  a  brief  description 
of  diseases  and  the  remedies,  believed  to  have  effected  the  cure,  for  which  the 
grateful  convalescent  dedicated  the  table  to  the  deity  by  whose  assistance  he  sup- 
posed himself  to  have  recovered  ;  and  when  he  laid  upon  this  study  and  his  own 
observation  the  foundation  upon  which  the  science  of  medicine  mainly  rests  to 
this  day. 

'  As  Mr.  Quetelet,  of  Brussels,  has  published  very  interesting  and  important 
inquiries  upon  this  subject. 

*  Section  xxix.,  chap.  iv.  of  Book  I.  explains  why  I  have  said  "  right  because 
it  is  good." 


SCIENCE. 


19 


and  the  various  relations  between  man  and  man,  belongs  to 
the  province  of  applied  or  practical  ethics,  called  likewise,  by- 
some,  the  science  of  duties  and  virtues.' 


*  Dodrina  de  Officiis ;  e.g.  Cicero,  De  Offlciis.  The  Germans  have  Pflichten- 
lehre  (Doctrine  of  duties),  and  Tugendlehre  (Doctrine  of  virtues). 

Etymology.  Words  which  designate  a  cause,  principle,  something  general  or 
abstract,  have,  in  almost  all  cases,  designated  at  an  earlier  period  some  effect, 
something  specific  or  real.  The  mind  proceeds  from  the  concrete  to  the  abstract, 
and  then  returns  from  the  abstract  to  the  concrete.  The  effect  strikes  the  mind 
at  once ;  the  cause  is  arrived  at  by  reflection.  We  observe  the  same  process 
respecting  the  signification  of  the  words  ethics  and  morals. 

Ethics  is  derived  from  the  Greek  word  r/-&iK6g,  moral,  from  Mof,  custom,  and 
ij&oc,  the  accustomed  dwelling,  home.  Plato  de  Legg.  7  :  tzuv  7/-&og  did.  £i?of. 
Aristotle  derives  it  in  various  places  in  his  Ethics  from  ei^of.  The  word  ^iJof 
means — first,  dwelling,  home;  secondly,  that  which  is  customary  there,  among 
men  who  have  homes,  among  civilized  beings;  thirdly,  habit;  and  lastly,  the 
expression  of  our  affections.  "EiJof  means  always  custom,  usage,  manners — that 
which  has  been  settled  among  men  as  custom,  that  on  which  men  agree  that  it  is 
proper,  propriety,  to  which  the  ideas  of  decorum,  of  what  is  right,  what  ought  to 
be  done,  are  closely  related.  At  a  later  period  man  reflected  on  what  was  really 
general  custom,  what  is  essential  in  it,  and  what  merely  accidental,  and  why  it 
is  and  ought  to  be  so,  or  whether  it  ought  to  be  different.  The  word  Idog,  the 
seat,  chair,  basis,  also  dwelling,  especially  of  the  gods,  belongs  likewise  to  this 
family  of  words,  as  the  Latin  solum  soil,  and  so/ere,  are  connected,  the  first  signi- 
fying that  which  has  settled,  is  firm,  the  latter  indicating  a  settled  disposition,  a 
being  in  the  habit  of  doing  a  thing.  The  idea  of  something  settled,  stable — rest- 
ing, therefore,  on  some  general  principle,  for  settling  does  not  mean  here  an 
arbitrary  agreement  upon  some  fashion,  but  a  custom  which  has  become  settled, 
tacitly  and  gradually  so — is  then  to  be  found  in  all  words  connected  with  that 
of  ethics,  as  is  also  the  case  with  the  corresponding  words  in  the  Teutonic 
languages.  'Ei?of  in  German  is  Sitte,  a  word  closely  related  to  the  words  Sitz, 
in  English  seat  (which  signifies  both  in  German  and  in  English  also  a  dwelling- 
place,  as,  a  country-seat,  the  seat  of  a  tribe),  Gesetz,  the  German  for  Laio,  that 
which  has  been  settled,  as  the  English  la7v  is  connected  with  the  verb  to  lay, 
that  which  has  been  laid  down;  Satzung,  an  ordained  and  well-established  law. 
In  Low  German  one  of  the  meanings  of  the  word  setten  is  to  ordain,  and  sale  is 
ordinance,  law.  See  a  Dictionary  of  the  Low  Saxon  Dialect,  Bremen,  1770, 
under  the  words  setten  and  sate.  [So  wohnen  and  gewohnen,  German,  ivon 
and  wont,  English,  are  cognates.] 

Sitte  is  an  ancient  Teutonic  word.  Situ,  Sidde,  Sid,  are  used  in  earliest  times  ; 
in  Anglo-Saxon  Sida,  Sitka,  in  Swedish  Sed,  in  Icelandic  Sidr.  Sittlich  in 
German  means  moral;  Sittenlehre,  the  science  of  that  which  is  sittlich,  ethics; 
gesittet  denotes  the  behavior  which  is  the  effect  of  Sittlichkeit,  i.e.  morality. 

The  word  7norals  is  derived  from  the  Latin  moralis,\v\i\zti  was  first  introduced 


20  ETHICS  IN  GENERAL. 

Taking  a  popular  view  of  all  sciences,  we  may  comprehend 
them  within  two  classes,  namely :  sciences  which  teach  zvhat 
is  or  has  been,  such  as  natural  philosophy,  natural  history, 
statistics,  geography,  the  philosophy  of  the  mind,  mathe- 
matics, civil  histor}--,  etc. ;  or  ivhat  ought  to  be — the  subject  of 
the  moral  sciences.  This  ought  to  be  would  have  no  meaning, 
wherever  it  applies  to  anything  not  wholly  belonging  to  the 
physical  world,  were  there  not  some  actions  which  we  cannot 
but  consider  as  good,  and  others  as  evil,  were  man  not  a 
moral  being,  had  he  not  a  moral  character,  as  soon  and  as 
long  as  he  is  master  of  his  actions,  Man  is  responsible  for 
what  he  does. 

III.  Why  is  man  responsible?  Why  is  he  accountable  for 
what  he  does  ? — Because  he  has  an  essentially  ethic  character. 
What  is  this  ?  in  what  does  it  consist  ? 

It  belongs  to  the  province  of  ethics  proper  to  furnish  us 
with  satisfactory  answers  and  proofs  as  to  the  questions  just 
made;  but  a  clear  and  distinct  understanding  of  some  points 
involved  in  these  answers  is  so  necessary  for  a  correct  solution 
of  numerous  questions  to  be  discussed  in  the  course  of  this 
work,  that  it  will  be  necessary  to  pay  some  attention  to  them 
here. 

In  the  first  place,  the  physiologist  shows  the  superiority  of 
the  human  organization,  its  various  functions,  and  all  that  is 
connected  with  the  animal  life  of  man,  over  those  of  the  rest 
of  the  animate  creation.  This  subject  forms  one  of  the  most 
interesting  results  of  comparative  anatomy  and  physiology. 

IV.  Man  is  endowed  with  sympathy  or  fellow-feeling,  i.e. 
a  feeling  for  the  pains  and  pleasures  of  others,  though  uncon- 


by  Cicero,  de  Fato,  i.  i  :  Nos  enim  partem  philosophise  de  moribus  appellare 
solemus,  sed  decet,  augentem  latinam  linguam,  nominare  mo7-alem.  Moralis, 
therefore,  is  derived  from  mores,  very  similar  in  its  meaning  to  rjBoz,  signifying,  in 
its  widest  application,  according  to  Quintilian,  omnes  habitus  mentis.  Seneca 
(Ep.  89)  says  that  philosop'iy  is  divided  by  most  people  \n\.o phiiosophia  tnoralis, 
naturalis,  and  rationalis. 


SYMPATHY  OR  FELLOW-FEELING.  2 1 

nected  with  any  interest  of  his  own,  or  standing  in  no  direct 
connection  with  him,  even  by  way  of  fear  for  his  own  future 
protection ;  and  with  a  pecuHarly  expansive  feeling  of  attach- 
ment. The  latter,  an  element  of  the  greatest  importance  in 
everything  at  all  connected  with  man's  social  state — and  what 
is  not? — is  reducible  to  the  first,  or,  if  it  be  preferred,  is  a 
species  of  sympathy  peculiarly  developed,  so  that  I  feel  justi- 
fied in  comprehending  it  under  this  head.  The  existence  of  the 
family,  love  of  country,  public  spirit,  devotion  to  our  family, 
fellow-citizens,  or  species,  disinterestedness,  love,  charity, 
friendship,  the  fine  arts,  the  existence  of  the  state,  and  what- 
ever is  noblest  and  best  in  man,  is,  in  part  or  wholly,  founded 
upon  this  great  element  of  the  human  soul.  Fellow-feeling, 
being  an  elementary  attribute  of  our  soul,  cannot  be  proved 
otherwise  than  by  our  consciousness  of  it,  and  its  effects 
being  observable  everywhere.  Were  a  man  to  deny  his  being 
or  ever  having  been  conscious  of  any  fellow-feeling,  of  ever 
having  suffered  except  in  consequence  of  injury  done  directly 
to  himself,  or  having  felt  pleasure  except  as  an  effect  of  bene- 
fits done  to  himself;  and  were  he  farther  to  assert  that  he  sees 
the  effect  of  sympathy  nowhere  around  him  ;  it  would  be  im- 
possible to  demonstrate  its  existence  to  him,  any  more  than 
the  existence  of  the  sense  of  sight  to  any  one  who  would 
boldly  deny  our  direct  and  absolute  conscio-usness  of  its  ex- 
istence and  the  consequent  perceptions  of  colors. 

The  denial  of  this  feeling  as  an  essential  and  original  attri- 
bute of  the  human  soul,  on  the  ground  that  we  do  not  discover 
it  with  the  lowest  beings  of  the  human  race,  is  unfounded  ; 
for,  first  of  all,  we  do  actually  find  it  with  individuals  to 
whatever  tribe  they  may  belong,  or  in  whatever  degree  of 
civilization  they  may  stand,  though  we  may  observe  it  only  in 
its  incipient  stages,  and  it  may,  indeed,  not  manifest  itself  in 
many  cases,  in  which  individuals  of  the  society  we  live  in  would 
show  it  in  a  strong  degree.  We  shall  have  to  treat  at  some 
length  of  the  capital  error  into  which  numerous  philosophers 
have  fallen,  to  the  perversion  of  truth,  in  supposing  that  that 
only  is  natural  in  man  which,  according  to  their  presumption, 


22  ETHICS  IN  GENERAL. 

is  to  be  found  in  a  supposed  primitive  stage  of  human  society. 
Suffice  it  here  to  say  that  nothing  can  be  more  fallacious  and 
subversive  of  all  truth  than  the  supposition  that  man's  nature, 
be  it  intellectual,  moral,  or  physical,  can  be  found  out  best,  or 
only,  by  observing  him  in  what  is  supposed  to  be  his  state  of 
nature,  and  a  confusion  of  this  supposed  natural  state  with  the 
state  of  savageness. 

V.  Nor  can  sympathy  be  denied  to  constitute  an  essential 
attribute  of  the  ethic  character  of  man,  on  the  ground  that  we 
may  discover  it  in  animals  likewise.  We  observe,  indeed,  in 
animals  a  feeling  which  forms  in  ourselves  one  of  the  in- 
cipient stages  of  sympathy ;  the  anxiety  of  the  parent  for  its 
offspring  ;  with  some  animals  the  protection  afforded  by  the 
male  to  the  female,  and  with  other  species  a  decided  dispo- 
sition for  living  socially  together.  But  how  limited  as  to 
time  and  individuals  is  this  feeling  even  with  those  species  of 
the  brute  creation  which  rank  highest  in  the  animal  scale,  and 
in  how  many  cases  can  we  distinctly  refer  it  to  an  impulse  of 
nature,  to  instinct,  with  which  it  stops  short,  or  to  a  mere 
feeling  of  common  danger.  The  wild  hogs  are  known  to  be 
peculiarly  sensitive  to  common  danger.  If  one  be  attacked, 
it  will  attract  the  rest  of  the  herd  by  its  violent  cries,  and  all 
will  resolutely  attack  the  enemy.  Yet  this  very  animal  is 
peculiarly  prone  to  destroy  its  own  offspring.  The  hen,  which 
but  a  moment  ago  was  the  image  of  maternal  solicitude,  when 
the  hawk  was  hovering  over  her  brood,  betrays  no  symptom 
of  grief  when  she  sees  two  or  three  of  her  chickens  carelessly 
trampled  to  death  by  herself  The  most  striking  instances  of 
animal  sympathy  on  record  are,  perhaps,  those  where  animals 
of  different  species  had  so  accustomed  themselves  to  each 
other  that  the  removal  or  death  of  the  one  caused  the  other 
to  pine  away ;  as,  for  instance,  in  the  case  of  the  dog  and 
lion  in  the  Garden  of  Plants  at  Paris.  The  Chinese  rice-bird, 
when  in  a  cage,  will  die  when  its  mate  is  removed.  Yet  how 
limited  is  this,  the  highest  instance  of  animal  desire  for  the 
company  of  another,  compared  to  the  expanded  sympathy  of 


SYMPATHY  OR  FELLOW-FEELIXG. 


23 


man — sympathy  which  is  founded,  as  we  characterized  it,  on 
a  feehng  for  another  individual  unconnected  with  our  own 
interest. 

Some  writers  have  acknowledged  the  existence  of  sym- 
pathy, indeed,  but  reduced  it  to  self-interest,  to  egotism.  It  is 
the  office  of  ethics  to  refute  this  doctrine,  which,  were  it 
established,  would  destroy  the  basis  of  nearly  all  that  is  good, 
noble,  or  worth  living,  laboring,  and  striving  for.  It  does  not 
lie  within  the  province  of  the  present  work  to  undertake  this 
task  ;  we  will  decide  it  in  a  practical  way,  only  by  asking.  Are 
you  a  brother,  or  a  son,  or  a  friend  ?  Have  you  ever  seen  a 
venerable  old  man  insulted  by  a  wanton  youth  ?  Have  you 
never  read  the  last  farewell  of  Socrates?  Does  it  not  make 
you  feel  elevated  and  yet  pained  when  you  hear  that  Spinoza 
gave  up  his  inheritance,  small  yet  sufficient  for  his  modest 
wants,  rather  than  have  a  word  of  dispute  with  his  sister,  and 
that  in  consequence  he  had  to  work  as  glass-grinder  in  the 
daytime,  that  he  might  follow  at  night  his  profound  studies? 
Did  you  feel  nothing  when  you  heard  of  the  noble  Poles  who 
were  torn  from  their  families  and  sent  to  Siberia  for  having 
loved  their  country,  and  whose  children  were  taken  far  into 
the  interior  of  Russia?  Have  you  never  perused  with  satisfac- 
tion a  vindication  of  a  person  against  whom  grave  and  plausi- 
ble charges  had  been  brought  ?  Have  you  ever  heard  of  the 
delight  which  burst  from  the  lips  of  the  ancient  mathematician, 
in  the  words  "  I  have  found  it,"  when  he  at  length  had  solved 
the  great  problem,  and  felt  the  whole  magnitude  of  his  dis- 
covery for  thousands  of  generations  yet  unborn  ?  Has  the 
perseverance  of  Columbus  never  reached  your  ears  ?  And 
have  you  heard  of  these  things  without  feeling  joy  or  pain  ? 
Has  no  drama  ever  touched  you  ?  On  what,  indeed,  is  nearly 
the  whole  literature  of  belles-lettres  founded,  if  not  on  sym- 
pathy— sympathy  even  with  fictitious  beings  ?  Who  peruses 
without  emotion  the  agony  of  poor  Jeanie  in  Scott's  Heart  of 
Mid-Lothian,  when  she  is  forced  to  testify  against  her  sister, — 
the  overwhelming  joy  when  she  has  obtained  the  king's  par- 
don for  Effie  ?     How  many  millions  after  millions  have  been 


24  ETHICS  IN  GENERAL. 

touched  by  the  return  of  Ulysses  to  his  servants,  son,  and 
wife !  How  many  thousands  have  felt  sorrow  at  the  sorrows 
of  Juliet  and  Romeo, — ^joy  at  the  joy  of  Robinson  Crusoe 
when  he  finds  Friday !  How  can  all  this  be  accounted  for  by 
egotism  ? 

VI.  Man  is  endowed  with  intellect,  the  faculty  of  reflection. 

Thinking  begins  with  the  perception  of  effects  produced  on 
our  external  senses,  as  well  as  of  certain  changes  produced 
within  ourselves.  The  mind  then  proceeds  to  the  reproduc- 
tion within  us  of  that  which  we  have  perceived,  or,  in  other 
words,  of  impressions.  The  faculties  necessary  for  the  im- 
portant process  by  which  we  endeavor  to  know  and  under- 
stand the  perceptions  and  the  functions  of  the  mind,  performing 
this  process,  form,  perhaps,  that  which  more  strictly  is  called 
the  human  intellect.  Man  analyzes  total  impressions,  that  is, 
impressions  produced  by  an  object  considered  as  an  entire 
and  undivided  whole,  compares  the  simple  qualities,  thus  dis 
covered,  with  others  obtained  by  the  analysis  of  other  total 
impressions,  and  reduces  them  to  generic  or  general  ideas 
(the  process  of  generalization).  He  combines  these  again  and 
draws  conclusions  (he  reasons).  Man  analyzes,  compares, 
combines,  abstracts,  concludes,  and  judges;  he  arrives  at  the 
ideas  of  truth  and  fallacy ;  he  separates,  and  arrives  at  the 
causes  of  effects;  he  combines,  and  elevates  himself  above  the 
sensible  world.  It  is  thus  alone,  for  instance,  that  he  acknowl- 
edges himself  as  the  citizen  of  a  state. 

It  has  been  maintained  that,  though  there  be  a  great  dif- 
ference between  the  capacities  of  man  and  the  thinking  of 
animals,  yet  the  difference  is  not  in  the  kind,  but  merely  in  the 
degree,  and  that  the  mental  powers  of  the  highest  animal 
approach  so  closely  to  those  of  the  lowest  man  that  in  fact  it 
may  be  said  there  is  no  essential  difference,  but  merely  a 
gradual  transition,  and  that  therefore  no  conclusion,  important 
in  an  ethic  point  of  view,  can  be  drawn  from  this  difference. 

This  objection  may  be  answered  thus.  First,  whether  the 
existing  state  of  mind  of  the  lowest  man  approaches  very 


MENTAL  ACTION  IN  ANIMALS  AND  MAN 


25 


closely  to  the  intellect  of  the  highest  animal,  or  sinks  even 
below  its  level,  is  not  the  important  point  to  be  discussed. 
The  question  is.  Can  the  low  intellect  of  man  be  raised  and 
developed,  or  not,  and  is  the  mind  of  the  animal  which  ap- 
proaches to  that  of  the  lowest  man,  in  its  highest  manifesta- 
tion ?  Everything  else  is  accidental,  not  essential.  The  eyes 
of  a  new-born  eagle  may  be  weaker,  and,  considered  in  their 
actual  state,  more  defective  organs  of  sight,  than  perhaps  those 
of  a  mole.  Yet  the  eyes  of  the  eagle  are  far  superior,  and 
differ  strongly  in  their  organization  from  those  of  a  mole. 

Secondly,  I  believe  we  do  not  venture  too  far  in  considering 
it  as  a  settled  truth  that  the  mental  activity  of  the  animal, 
which  it  undoubtedly  possesses,  does  not  elevate  itself  above 
some  of  the  most  elementary  combinations  of  impressions 
received  through  the  senses — combinations  which  the  mind 
of  the  brute  performs  without  consciousness.  We  ourselves 
perform  numerous  combinatory  processes  without  conscious- 
ness of  the  performance,  e.g.  when  we  avoid  a  disagreeable 
disturbance,  which  we  have  repeatedly  met  with,  on  our  usual 
walk,  by  taking  a  different  direction,  and  become  conscious  of 
the  cause  only  after  we  have  been  reminded  of  our  change  by 
the  fact  of  having  chosen  already  a  different  walk.  The  animal 
undoubtedly  thinks,  but  man  reflects.  "A  mule,"  says  Fred- 
eric the  Great,  in  his  Considerations  on  the  Manner  of  Waging 
War  with  Austria  (1758),  "though  it  might  have  made  ten 
campaigns  under  Prince  Eugene,  would  not  become  for  all 
that  a  better  tactician."  Man  reflects  upon  his  re''ection; 
thinks  on  his  thoughts;  makes  the  mind  itself  the  subject  of 
its  inquiry.  The  animal  can  do  no  such  thing.  If  it  could,  it 
would  speak ;  for  though  its  organs  of  speech  may  not  be  so 
favorably  formed  for  the  expression  of  a  great  variety  of  tones 
and  accents,  as  the  high-arched  palate,  the  peculiar  construc- 
tion of  the  windpipe,  the  peculiarly  movable  lips,  and  the 
many  other  organs  of  man  which  contribute  to  the  variety, 
pliability,  and  beauty  of  language,  yet  there  are  many  animals 
which  possess  a  scale  of  tones,  even  now  uncultivated  as  they 
are,  sufficient  to  become  the  basis  of  articulate  communica- 


26  ETHICS  IN  GENERAL. 

tion.  It  is  not  because  the  animals  have  no  perfect  organs  of 
speech  that  they  have  no  language,  as  Anaxagoras  said  that 
animals  would  be  men  had  they  but  hands ;  but  they  have  no 
language  because  they  have  not  the  ideas  to  be  expressed.  I 
doubt  not  but  that  some  of  the  most  intelligent  animals  feel 
at  times  a  degree  of  that  unspeakable  pain  which  man  suffers 
when  language  forsakes  him  and  his  soul  is  anxious  to  express 
more  than  words  can  convey.  I  believe  that  I  have  observed 
this  painful  effect  of  a  struggle  between  the  mind  and  means 
of  utterance  in  a  dog,  which  was  anxious  to  communicate  a 
serious  accident  and  yet  did  not  succeed  in  doing  so  for  a  long 
time.  But  this  proves  nothing  against  the  position  just  taken. 
We* observe  the  same  pain  in  children.  Did  this  pain  always 
press  upon  the  mind  of  the  dog,  the  means  of  utterance  would 
finally  be  raised  to  the  wants  of  the  mind,  of  whatever  com- 
pound of  sounds  and  signs  this  utterance  should  consist.  It 
is  the  want  of  thought  which  makes  the  brute  the  "  mute 
creation."  William  Humboldt  says,  "  The /«/^«//<9«  and  the 
capacity  of  expressing  something,  and  not  only  a  general  one, 
but  the  distinct  one  of  representing  something  thongJit,  is  the 
only  thing  which  characterizes  the  articulate  sound ;  and 
nothing  else  can  be  fixed  upon  to  designate  its  difference  from 
the  animal  cry  on  the  one  hand,  or  the  musical  tone  on  the 
other." » 

I  am  aware  that  there  existed  formerly  a  ready  way  of 
accounting  for  many  intellectual  phenomena  in  the  brute 
world,  by  ascribing  them  simply  to  instinct.  This  is  not 
accounting  for  the  phenomenon.  First  the  superiority  of  man 
was  said  to  exist  in  his  acting  by  reason,  while  the  animal 
acts  by  instinct;  and  when  phenomena- were  cited  which 
showed  undeniable  traces  of  combinatory  powers,  and  which 
would  have  contradicted  this  dictum,  it  was  said,  these  phe- 


I  On  the  Kawi  Language  on  the  Island  of  Java,  etc.,  vol.  i.  (in  Gentian),  Ber- 
lin, 1 836,  page  83  of  the  Introd.  on  the  Diversity  of  the  Organization  of  Human 
Languages.  The  whole  in  the  Transactions  of  the  Royal  Academy  of  Sciences 
at  Berlin  for  the  year  1832,  vol.  ii. 


EXPERIENCE  IN  ANIMALS. 


27 


nomena  must  be  explained  by  instinct,  because  animals  have 
nothing  else  to  guide  them.  With  this  argument  in  a  circle 
many  seemed  to  be  satisfied.  It  can,  however,  undeniably  be 
proved  that,  in  some  cases,  animals  act  not  because  impelled 
by  instinct,  but  in  consequence  of  mental  action  within  them, 
though  it  may  be,  and  most  probably  is,  unconscious  to  them. 
Ask  any  hunter  whether  some  pointers  think  or  not. 

VII.  Yet  though  this  mental  action  in  the  brute  animal  is 
allowed — and  some  instances  will  be  given  directly — there  is 
still  a  line  which  very  distinctly  marks,  even  in  a  popular 
point  of  view,  the  difference  between  man  and  brute. 

I.  Man  gathers  experience  and  transmits  it  from  genera- 
tion to  generation,  conscious  of  its  being  experience  and  thus 
capable  of  receiving  new  additions.  The  animal  improves 
likewise  by  experience  ;  we  find  around  us  daily  proofs  of 
this  fact.  All  drilling,  which  does  not  produce  a  new  habit, 
is  founded  upon  it.  Animals  entirely  change  their  habits  in 
different  countries,  and  acquire  gradually  a  facility  in  pro- 
tecting themselves  against  the  inclemency  of  weather  or  in 
procuring  food.  Young  animals  learn  from  the  old  ones,  and 
what  thus  appears  to  many,  at  first  glance,  to  be  in.stinct,  i.e. 
a  primitive  and  direct  impulse  of  nature,  will  be  found,  on 
closer  examination,  to  be  the  effect  of  experience.  The  most 
timid  animals,  in  parts  of  the  world  which  had  never  been 
visited  by  intruders,  showed  no  fear  at  their  first  approach. 
The  birds  or  seals  on  the  solitary  islets  in  the  Pacific  show 
no  apprehension  of  any  danger,  no  shyness,  when  first  at- 
tacked ;  but  they  acquire  it  as  soon  as  they  know  the  char- 
acter of  their  pursuers.  Whether  the  beaver  builds  its  curious 
hut  because  it  cannot  resist  an  impulse  entirely  independent 
upon  its  volition,  as  the  bee,  for  instance,  forms  its  regular 
cell,  or  whether  this  species  has  formed  its  architecture  by  a 
stock  of  common  experience  gradually  acquired,  might  be 
tested  by  observation  ;  but  this  seems  certain,  that  knowledge 
— and  experience  is  a  species  of  knowledge — is  transmitted 
in  animals   by  mere   imitation,  and  remains  within  a  very 


28  ETHICS  IN  GENERAL. 

limited  circle,  even  with  the  most  favored  animals;  while 
man  improves  it  infinitely.  The  beavers  of  North  America 
build  to-day  as  they  were  found  the  day  when  the  first  white 
men  settled  on  the  Western  continent.  There  is  likewise  a 
greater  uniformity  in  the  actions  of  animals  in  different  parts 
of  the  world ;  the  natural  impulses,  though  acted  upon  by 
experience,  seem  therefore  to  be  more  prominent. 

2.  There  is  foresight  in  animals,  and  yet  their  foresight 
differs  from  that  of  man,  even  of  the  lowest  grade,  by  a  marked 
characteristic.  The  beaver  builds  very  cunningly  his  dams 
at  a  great  distance  from  his  lodge,  following  entirely  the 
necessity  arising  out  of  the  shape  and  current  of  the  river. 
Animals  collect  stores  for  the  winter,  build  bridges,  prepare 
for  battles,  concert  upon  plans  to  decoy,  entrap,  or  otherwise 
to  catch  their  prey,  endeavor  to  mislead  the  disturber  of  their 
young  ones  or  the  enemy  of  their  females,  wait  for  favorable 
winds,  observe  a  fixed  order  in  travelling,  relieve  each  other 
in  the  performance  of  laborious  tasks,  change  their  nests  ac- 
cording to  a  change  of  circumstances,  observe  in  some  cases 
a  certain  degree  of  division  of  labor  (as  is  the  case  with  the 
beavers);  the  fox  resorts  to  a  series  of  actions  having  distinct 
reference  to  one  another,  in  order  finally  to  arrive  at  his  ob- 
ject :  indeed,  very  many  things  done  by  animals  indicate  fore- 
sight, or  a  faculty  to  combine  received  impressions.  Eut  there 
exists,  as  far  as  I  know,  no  solitary  instance  of  exchange 
among  animals,  or  of  anything  that  could  be  fairly  considered 
as  approaching  it.  The  animal  elevates  itself  in  no  case  to 
any  exchange  of  labor  or  produce,  of  which  a  certain  degree 
exists  among  all  men,  the  very  lowest  Hottentot  or  the  most 
barbarous  South-Sea  Islander  not  excepted.  There  is  no 
human  tribe  known  which  has  not  risen  to  this  incipient 
stage  of  all  civilization,  however  impeded  its  farther  progress 
may  be  by  constant  disturbances,  such  as  incessant  warfare, 
the  permanence  of  savage  habits,  famine,  or  disease.  Even 
the  most  brutish  Pelew  Islander  will  willingly  part  with  the 
fish  which  he  has  caught,  for  a  piece  of  iron.  So  common 
an  act  of  man  is  the  exchange  of  articles  and  of  labor,  en- 


EXCHANGE,  PECULIAR    TO  MAN.  29 

grossing  so  much  of  his  attention,  and  so  large  a  number  of 
all  human  actions  in  common  life  consist  in  exchanging,  that 
in  German  the  word  acting  means  carrying  on  trade,  and 
action  a  commercial  house.  Yet  the  etymology  of  the  Ger- 
man word  indicates  nothing  of  the  kind  ;  for  handeln  (etymo- 
logically  the  same  with  the  English  to  handle)  is  derived  from 
Hand,  and  means,  still,  acting,  because  our  visible  actions  are 
chiefly  performed  with  the  hands. 

VIII.  It  is  not  necessary  for  the  present  purpose  to  ascer- 
tain when  the  animal  acts,  simply  impelled  by  instinct  or  not. 
If  it  be  shown  that  in  many  cases  the  brute  thinks,  it  suffices 
for  our  purpose,  which,  in  this  particular  case,  is  to  prove  on 
the  one  hand  that  it  is  an  erroneous  notion,  and,  I  believe, 
one  unworthy  of  the  Creator,  to  imagine  that  the  whole  brute 
creation  moves  and  acts  in  no  other  way  than  the  dissolved 
chemical  elements  of  some  body  when  they  crystallize  ;  on 
the  other  hand,  that  it  is  equally  erroneous  to  deny  any  essen- 
tial difference  in  the  thinking  of  the  animal  and  that  of  man. 
If  a  bird  builds  its  nest  for  the  first  time,  we  cannot  suppose 
that  it  has  retained  during  the  whole  time  it  was  living  singly, 
a  recollection  of  its  parental  nest,  or  that  any  idea  of  the  fact 
that  at  the  proper  season  it  will  have  young  ones  in  its  turn, 
and  that  it  ought,  consequently,  to  provide  for  them  before- 
hand, has  been  imparted  to  it  by  any  other  individual  of  its 
species.  This  would  necessarily  indicate  operations  of  the 
mind,  which  we  entirely  miss  where  we  should  certainly 
expect  them  soonest.  But  if,  on  the  other  hand,  a  rising 
freshet  threatens  to  reach  the  nest  of  a  granivorous  bird,  built 
in  a  hedge,  and  the  bird  hastily  builds  a  temporary  nest  in  a 
safer  place,  and  carries,  against  its  natural  disposition,  and 
contrary  to  the  common  use  for  which  the  beak  is  formed, 
its  young  with  care  from  the  endangered  spot  to  the  new  nest, 
we  cannot  possibly  explain  it  by  instinct,  if  this  word  is  meant, 
to  express  any  definite  idea.  When  the  land-crabs  of  the 
West  Indies  sally  forth,  at  the  proper  season,  in  long  proces- 
sion from  the  interior  mountains  and  proceed  in  as  straight  a 


30 


ETHICS  IN  GENERAL. 


line  as  possible  to  the  sea-shore,  to  deposit  their  eggs  and 
shed  their  shell,  and  then  return  in  the  same  order,  we  can 
hardly  bring  ourselves  to  consider  these  movements  in  so  low 
an  animal  to  be  the  effect  of  experience  and  thinking.  Take, 
on  the  other  hand,  a  Newfoundland  dog,  which,  as  is  common 
with  dogs,  took  great  pleasure  in  walking  with  his  master. 
He  soon  found  out  that  the  act  of  taking  hat  and  gloves,  or 
of  merely  putting  aside  books  and  papers,  at  certain  times  of 
the  day,  was  an  indication  of  the  master's  intention  of  going 
out,  and  he  expressed  his  anticipation  of  pleasure  by  manifest 
signs.  Several  times,  however,  the  dog  had  been  sent  home, 
as  his  company  could  not  always  be  convenient  to  the  mas- 
ter. The  consequence  was  that  the  dog  would  take  good 
care  not  to  show  that  he  expected  to  leave  the  house,  but 
he  would  slyly  steal  out  of  the  room,  as  soon  as  he  thought 
that  any  indications  of  a  walk  had  been  given,  and  wait  at  a 
certain  corner  which  the  master  had  to  pass  daily,  and  which 
was  at  a  considerable  distance  from  home.  Surely  this  indi- 
cates some  operation  of  the  mind,  not  to  be  accounted  for  by 
instinct.^ 


'  The  above  instance  has  not  been  mentioned  because  peculiarly  remarkable, 
but  simply  because  it  fell  under  my  own  observation.  I  can  give  another  more 
striking  instance  of  mental  operation  in  this  intelligent  animal.  He  accompanied 
a  servant,  who  rode  to  a  place  at  some  distance  from  home.  The  horse  was  tied 
to  a  tree  in  front  of  a  house,  while  the  servant  executed  his  message.  When, 
after  some  delay,  he  came  out  of  the  house,  the  horse  was  gone ;  he  went  on  a 
hill,  and  from  this  elevated  spot  he  observed  the  dog  leading  the  horse  by  the 
bridle,  which  the  canine  leader  held  in  his  mouth,  both  trotting  at  a  moderate 
pace.  The  dog  brought  home  the  horse  and  led  it  to  its  proper  place  in  the 
stable.  So  he  was  in  the  habit  of  leading  one  of  the  horses  to  be  watered.  This 
animal  was  sent  from  the  coast  of  Labrador,  and  was  not  of  the  common  long- 
haired breed  of  Newfoundland  dogs. 

Several  interesting  works  have  been  written  on  the  instinct,  habits,  and  extent 
of  thinking  in  animals.  Some  great  physiologists,  such  as  Haller,  have  collected 
most  remarkable  facts.  There  are  some  interesting  anecdotes,  connected  with 
this  subject,  to  be  found  in  various  volumes  of  the  London  Library  of  Entertain- 
ing Knowledge. 

The  reader  who  has  any  curiosity  to  know  the  old  writers  on  the  question 
whether  animals  have  souls  or  not — a  subject  much  discussed  at  one  time,  on 
religious  grounds — may  refer  to  the  article  Rorarius,  in  Bayle's  Dictionary. 


CHAPTER     II. 

Sensuality  and  Rationality. — Man  can  determine  his  own  Action— is  free. — Ani 
mal  Affection.— Right  and  Wrong;  Ought  and  Ought  not.— Conscience.— What 
it  is. — Its  Origin. — Locke's  Opinion  discussed. — Universality  of  Conscience. — 
Uniformity  of  Moral  Codes  and  Views.— The  Thugs  and  Battas.— Can  we 
explain  Man's  Moral  Character  by  Sympathy  alone  ? 

IX.  The  infinitely  superior  intellect  of  man  leads  to  another 
more  important  difference  between  him  and  the  brute  creation. 
The  animal  is,  with  rare  exceptions,  strictly  confined  within 
its  own  sensuality,  that  is,  within  the  sphere  of  its  senses 
alone.  They  direct  its  actions,  or  afford  those  impressions  on 
which  its  limited  sphere  of  thinking  depends.  Its  affections 
are  founded  on  its  sensual  impressions  and  impulses;  the  brute 
lives  and  moves  within  the  sensible  world  alone.  I  said,  "with 
rare  exceptions."  If  a  dog,  as  lately  happened,  rushes  into  a 
house  wrapt  in  flames,  to  save  an  infant  far  too  young  to  have 
ever  bestowed  any  act  of  kindness  upon  the  animal,  and  if  the 
animal,  nevertheless,  saves  no  article  to  which  it  had  been 
accustomed  for  years,  it  cannot  be  denied  that  this  is,  in  its 
kind,  affection,  to  which  the  sensuality  of  the  animal  alone 
cannot  have  prompted  or  the  mere  sensual  nature  impelled  it. 
These  exceptions  have  nothing  startling  for  us.  Who  will  say 
that  he  has  seen  the  whole  order  of  things  in  its  details  ?  who 
can  aver  that  he  knows  for  what  the  Great  Ruler  has  destined 
his  brute  creation  ? 

X.  Man,  belonging  likewise  in  part  to  the  sensible  world, 
and  being  subject  to  the  necessity  of  matter,  according  to  his 
sensuality,  i.e.  to  his  belonging  to  the  sensible  world  and  its 
laws  in  which  everything  is  determined,  and  does  not  deter- 
mine itself,  has,  on  the  other  hand,  the  great  and  grave  privi- 
lege to  determine  himself     He  can  guide,  determine  himself 

31 


32  ETHICS  IN  GENERAL. 

by  reason,  within  certain  limits  given  by  the  material  world; 
he  can  cJioosc.  According  to  his  sensuality,  man  is  bound ;  if 
Ive  feels  pain,  he  cannot  help  being  prevented  by  it  from  freely 
thinking;  according  to  his  rationality  he  is  free,  he  reflects 
and  chooses — he  enjoys  freedom.  His  will  is  free,  because 
he  can  determine  himself,  with  regard  to  willing  an  object  of 
which  he  is  conscious.  The  proof  of  this  is  our  consciousness 
of  being  able  to  will  something  which  is  repugnant  to  our 
sensuality,  or  which  may  cost  us  the  greatest  sacrifices  of  our 
warmest  affections.  The  dog  could  be  driven  by  its  affection 
to  act  against  its  senses  and  common  instincts ;  but  it  cannot 
elevate  itself  by  reason  above  even  this  affection.^ 

XI.  If  man  acts,  he  may  be  impelled  by  instinct,  or  prompted 
by  his  sensuality,  e.g.  when  he  drinks,  being  thirsty,  or  strug- 
gles to  save  himself  from  drowning,  in  which  case  he  acts  in 
common  with  the  animal.  Or  he  may  determine  his  own  will. 
In  the  latter  case,  he  may  be  actuated  either  by  motives  of 
expediency,  when  he  simply  judges  whether  his  action  will 
lead  to  the  object  he  has  in  view,  e.g.  when  he  grinds  the  sickle 
to  reap  his  wheat;  or  by  moral  motives  (which  in  this  case 
include  the  immoral  ones,  as  illness  is  included  in  the  state 


'  It  is  one  of  the  greatest  and  most  difficult  problems  of  philosophy  to  show 
how  the  free  agency  of  man,  or  self-determination,  is  compatible  with  the  neces- 
sary order  of  things,  the  omniscience  of  the  Deity,  and  the  dependence  of  man 
on  society,  or,  which  is  the  same,  how  man's  ethical  individuality  exists  along 
with  his  close  and  intimate  connection  both  with  the  matter  around  him  and  the 
general  course  of  the  development  of  human  mind,  his  close  dependence  upon 
the  times  he  happens  to  live  in.  Though  far  from  being  sqlved,  whatever  some 
recent  philosophers  may  have  advanced,  deceiving  themselves  by  an  amplification 
of  words  rather  than  an  explanation  of  the  subject,  we  know  enough,  and  it  can  be 
sufficiently  proved,  even  were  not  the  consciousness  of  our  ethic  character  so 
primary  an  element  of  the  human  soul,  that  both  do  exist,  and  that  therefore  the 
solution  of  tlie  difficulty  must  be  possible,— whether  in  this  world  is  another  ques- 
tion. Mr.  Qu6telet,  a  writer  of  uncommon  merit,  has  given  most  interesting 
statistical  details  on  tlie  physical  laws  which  influence  the  intellect  and  moral 
character  of  man,  in  one  of  his  recent  works,  entitled  On  Man  and  the  Develop- 
ment of  his  Faculties,  or  Essay  on  Social  Physics,  Paris,  1835,  2  vols.,  in  French 
— a  work  deserving  attention. 


RIGHT  AND   WRONG. 


33 


of  health).  The  moral  motives  make  an  action  good  or  bad, 
praiseworthy  or  hateful,  deserving  of  applause  or  condemna- 
tion. 

Whence  arises  this  new  element  in  the  human  soul  ? — this 
principle  according  to  which  we  call  actions  good  or  bad,  and 
which  we  are  unable  to  apply  to  matter,  or  to  the  animal 
mind,  but  to  the  human  actions  alone? 

XII.  It  is  evident  that  had  we  not  the  sense  of  sight  it 
would  be  absolutely  impossible  for  us  to  arrive  at  the  notion 
of  color  by  the  operation  even  of  the  keenest  intellect,  or  the 
most  comprehensive  genius  upon  perceptions  received  through 
the  other  senses.  Yet  we  are  conscious  of  the  perception  of 
color,  and  could  not  possibly  alienate  it  from  our  mind,  even 
were  we  to  attempt  it,  for  the  very  reason  that  we  are  con- 
scious of  it  in  precisely  the  same  degree  as  we  are  conscious 
of  our  existence.  No  man  can  prove  either.  If  a  person  were 
to  ask  us  to  prove  our  consciousness  of  the  notion  of  color, 
we  could  not  do  so — the  question  relates  to  a  primordial  con- 
sciousness of  the  mind  itself;  but  we  would  answer  perhaps  thus: 
"All  we  can  say  is,  we  know,  we  are  conscious  of  the  fact,  that 
we  exist,  that  we  see,  that  we  have  the  notions  of  different  colors. 
If  you  deny  it,  there  is  no  remedy ;  but,  whatever  you  may 
pretend,  the  truth  is,  you  yourself  cannot  help  acknowledging 
them  to  exist  in  every  one  whom  you  see  endowed,  like  your- 
self, with  the  organs  of  sight.  Your  own  consciousness  of 
the  perception  of  colors  forces  you — not  by  a  long  course  of 
reasoning — to  acknowledge  it  in  others,  as  soon  as  you  see 
them  endowed  with  active  organs  of  sight.  And,  what  is  far 
more  important,  you  do  not  only  allow  the  consciousness  of 
color  to  exist  in  others,  but  you  demand  it,  you  insist  upon  it, 
you  presuppose  it  in  every  fellow-creature,  and  found  your 
conversation,  arguments,  social  and  political  intercourse,  upon 
it.  You  would  go  so  far  as  to  punish  the  pretence  of  its  non- 
existence, e.g.  if  an  officer  were  to  pretend  that  he  perceived 
somehow  or  other  a  flag  being  hoisted  on  the  admiral's  vessel, 
but  he  knew  nothing  about  the  colors  exhibited  by  the  flag; 

3 


ETHICS  IN  GENERAL. 

or  you  would  be  dissatisfied  with  a  servant  were  he  to  gather 
fruits  which  evidently  show  by  their  color  that  they  are  not 
ripe.  You  acknowledge  and  demand  the  consciousness  of 
color  in  others,  because  you  are  conscious  that  you  possess  it 
qua  homo,  i.e.  you  do  not  only  feel,  believe,  but  you  have  the 
undoubted,  primitive,  and  absolute  certainty  of  it;  you  knozv 
that  this  consciousness  constitutes  an  essential  attribute  of 
your  being,  and  that  it  is  not  accidental.'" 

Greater  certainty  than  this  absolute  consciousness  we  can- 
not possibly  obtain.  We  might  show  the  great  probability 
that  all  men  qua  homines,  if  provided  with  sound  eyes,  have 
the  consciousness  of  color,  because  we  find  traces  of  this  sense 
among  all  men,  and  conclude  that  future  generations  will  re- 
semble their  forefathers ;  but  it  can  be  made  probable  only  in 
this  manner ;  while  absolute  consciousness  gives  us  absolute 
certainty.  Take,  for  instance,  "  I  know  I  am ;"  this  is  more 
certain  than  any  mathematical  proof  can  be  made,  for  even 
that  has  first  to  rely  on  some  axioms,  which  presuppose  not 
only  my  existence,  but  also  a  belief  in  my  own  judgment  and 
the  power  of  the  mind  to  draw  correct  conclusions. 

XIIT.  Precisely  similar  to  the  foregoing,  with  regard  to  its 
origin,  is  the  idea,  "we  ought,"  "thou  shalt"  or  "  shalt  not" 
— the  idea  or  consciousness  of  right  or  wrong.  The  subtlest 
intellect,  the  most  vigorous  mind,  unaided  by  anything  else, 
cannot  arrive  at  any  other  idea,  with  regard  to  an  action,  than 
that  of  expediency,  fitness,  correctness,  respecting  the  choice 
of  means  for  the  object  in  view.  Yet  we  find  in  all  men,  even 
in  the  lowest  or  most  barbarous,  the  feeling  denoted  by  "  lie 
ought,"  or  "he  ought  not,"  entirely  independent  of  the  ex- 
pediency or  judiciousness  of  our  action — in  a  word,  we  find 
the  moral  element  in  the  human  soul — the  consciousness  of 
right  and  wrong,  not  of  a  particular  right  or  wrong,  but  simply 
that  there  are  actions  which  can  be  called  right,  and  others 


'  [Yet  some  men  are  color-blind.  We  assume,  from  what  we  know  of  our- 
selves, a  general  aggregate  of  human  qualities,  unless  we  find  proof  to  the  con- 
trary.] 


RIGHT  AND   WRONG. 


35 


which  are  wrong  independently  of  their  expediency.  Neither 
experience,  nor  revelation,  nor  anything  else  could  have  given 
or  can  have  been  a  substitute  for  this  original  consciousness  of 
ought  or  ought  not — of  right  or  wrong. 

Suppose  for  a  moment  there  was  no  idea  of  right  or  wrong 
in  your  mind — no  feeling  of  ought  or  ojight  not ;  though  this 
supposition  is  as  difficult  a  process  as  that  of  imagining  our- 
selves for  a  moment  without  any  notion  whatsoever  of  color  ; 
for  we  are  primitively  conscious  of  them,  and  it  is  exceedingly 
difficult  to  imagine  ourselves  even  for  a  moment  not  to  be 
conscious  of  that  of  which  we  are  conscious.  Indeed,  we 
never  can  wholly  succeed  in  this  process,  because  this  con- 
sciousness forms  part  of  our  very  self  Suppose,  however,  as 
well  as  you  can,  you  had  no  feeling  whatever  of  right  or 
wrong,  what  could  possibly  prevent  you  from  stealing  anything 
of  which  you  are  in  want,  and  if  convinced,  as  in  some  cases 
you  well  might  be,  that  detection  of  the  theft  itself  is  impos- 
sible, that  the  article  will  never  be  missed  ?  Experience  ?  I 
ask,  what  experience  ? — external  experience  ?  For  instance, 
that  thefts  are  generally  discovered  ?  Our  experience  may 
lead  us  to  the  very  contrary.  We  may  be  lawyers,  and  by 
experience  have  become  convinced  that  the  greater  number 
of  thefts  remain  undiscovered  and  unpunished.  Or  that  we 
know  by  experience,  from  observing  others  or  ourselves,  that 
doing  wrong  does  not  afford  lasting  pleasure?  Then  I  ask, 
what  pleasure  ? — external  or  internal  ?  If  external  be  meant, 
the  assertion  is  unfounded,  for  many  men  live  a  most  comfort- 
able life  to  the  end  of  their  days  with  means  fraudulently  or 
criminally  acquired.  If  internal  pleasure  be  meant,  it  is  only 
another  expression  for  the  pleasure,  or  applause,  we  feel  inde- 
pendently of  the  expediency  of  our  action,  which  is  the  very 
thing  I  insist  upon.  Or  because  we  know  by  experience  that 
no  one  will  prosper  upon  fraud  ?  This  is  unsound  again. 
People,  families,  dynasties,  many  successive  generations,  have 
prospered  upon  fraud  and  crime ;  every  day's  experience,  as 
well  as  history,  proves  the  fact.  God  has  given  to  man  a  far 
higher  character,  and  the  order  of  things  in  creation  is  founded 


-6  ETHICS  IN  GENERAL. 

upon  a  far  different  principle  than  the  gross  one  that  worldly 
misery  follows  upon  wrong,  and  prosperity  upon  ri-ht.  in  each 
case.  Indeed,  it  would  not  be  a  moral  world,  if  the  necessary 
consequence  of  theft  were  the  withering  of  the  arm  that  com- 
mitted it;  if  the  tongue  that  lies  were  stricken  with  palsy. 
On  the  contrary,  it  would  be  a  non-moral  world,  a  world  of 
necessity  and  not  of  freedom  of  action.  It  is  unsound,  it  is 
immoral,  to  teach  the  young  that  by  virtue  they  necessarily 
insure  worldly  success.  The  truth  ought  early  to  be  incul- 
cated, that  virtue  may  not  lead  to  success,  that  it  may  lead  to 
far  greater  pangs  than  those  who  are  not  virtuous  ever  can  feci, 
for  the  very  reason  that  they  are  not  virtuous. — Or  because 
revelation  says,  Thou  shalt  not  steal  ?  Suppose  we  have  no 
feeling  of  right  and  wrong,  or,  which  is  the  same,  that  we  ought 
to  do  what  is  right,  and  ought  not  to  do  what  is  wrong — and 
it  will  be  recollected  that  we  argue  under  this  supposition — 
what  should  induce  us  to  obey  revelation,  even  if  we  had 
acknowledged  it  as  such  ?  It  must  needs  remain  an  entirely 
extraneous  matter  to  us.  Xo  revelation  could  be  ad 
to  non-moral  beings.  Or  do  we  obey  revelation  mt! 
cause  punishment  is  threatened  to  the  disobedient  here  as  in 
the  world  to  come  ?  This  will  not  be  claimed  by  any  true 
believer,  for  two  reasons.  Fear,  of  itself,  is  no  moral  motive. 
The  animal  which  does  or  omits  certain  things  because  it 
knows  that  chastisement  will  follow  disobedience,  docs  not  act 
morally  on  this  account.  So  marked  is  the  diflcrcnce  between 
the  action  of  the  animal  and  man  in  these  cases,  that  some 
languages,  e.g.  the  German,  have  distinct  words  for  the  inflic- 
tion of  evil  in  consequence  of  prohibited  action,  one  with, 
another  without,  reference  to  the  moral  character  of  the  pun- 
ished action.  But  let  us  even  waive  this  point;  what  can  at 
all  give  birth  to  a  belief  in  the  punishment  with  which  we  are 
threatened  for  immoral  acts  or  the  wrong  we  do,  if  we  have 
not  previously  the  notion  of  right  and  wrong,  and  that  there- 
fore the  latter  desemes  punishment,  because  we  ought  not  to 
have  done  it? 


CONSCIENCE. 


37 


XIV.  This  original  consciousness  of  right  and  wrong — this 
consciousness  of  luc  ought  or  ought  not, — is  called  conscience, 
from  the  Latin  word  conscicntia,  consciousness,  from  conscio, 
con  and  scire  to  know,  applied  to  this  specific  consciousness 
of  right  and  wrong,  conscicntia  boni  et  uiali,  recti  ct  pravi,  be- 
cause it  is  the  most  important  of  the  different  species  of  con- 
sciousness. In  many,  perhaps  most  languages,  the  word 
which  designates  this  consciousness  is  derived  from  a  corre- 
sponding root.  The  German  Gcwisscn  is  derived  from  the 
verb  ZL'isscn,  to  know,  to  wit;  the  Greek  <ju-,s.ior,tT:^  is  ctymo- 
logically  the  same  with  the  Latin.' 

I  repeat,  the  experience  of  pleasure  cannot  give  us  the 
notion  of  right  and  wrong.  I  ask,  who  has  cast  an  account 
of  all  actions  in  his  life  which  have  afforded  him  sen- 
sual pleasure  (for  as  to  the  other  kind  of  pleasure  I  have 
already  shown  that  it  coincides  with  what  is  claimed),  or 
made  out  a  list  of  all  actions  with  which  he  has  become 
acquainted  both  in  history  and  his  own  experience,  and  of 
those  which  have  given  him  unpleasurable  or  painful  sensa- 
tions, and  accordingly  made  up  his  opinion  what  actions  he 
will  call  good  or  bad  ?  Besides,  if  we  adopt  this  ground, 
what  have  we  to  oppose  to  those  who  maintain,  and  in  truth 
too,  that  those  actions  which  we  call  vicious,  criminal,  or  vil- 
lanous  have  given  them  the  greatest  pleasure,  for  instance, 
the  entrapping  of  unwar)'  innocence  ?  There  have  been  not 
a  few  people  who  have  found  delight  in  cruelty  itself,  i.e.  in 
the  infliction  of  useless  pain,  though  they  felt  they  were 
doing  wrong.  The  fact  cannot  be  denied  ;  observation  as 
well  as  personal  confessions  confirm  it;*  and  yet  conscience 


»  SwfM;j(Tif.  from  avvoiia,  I  am  one  who  know<:,  is  conscious  of  a  fact.  It  is 
the  form  of  the  perfect  with  the  signification  of  the  present  tense  of  li-  /i&- 1  see, 
a  verb  never  used  in  the  present  tense,  the  perfect  of  which,  7  haze  seen,  have 
perceived,  denotes  the  result  in  the  present  time,  /  know.  "Zvvm&a  is  perhaps 
know  with  myself,  i.e.  I  am  both  object  and  subject  of  knowledge. 

■  *  The  confessions  of  Margaret  Gottfried,  executed  at  Bremen  in  1S30,  are  an 
illustration.  She  had  poisoned  successively  above  thirty  persons,  including  her 
parents,  children,  friends,  etc.,  and  found  pleasure  in  the  excitement.  If  we 
cho<ise  to  call  ever)'  crime  monomania,  she  was  a  monomaniac;  but  there  was 


38 


ETHICS  IN  GENERAL. 


does  not  only  act  in  despite  of  it,  but  approves  in  those  cases 
most  in  which  we  feel  most  compelled  to  act  contrary  to 
pleasurable  sensations. 

Conscience  is,  then,  an  original  consciousness  of  right  and 
wrong,  not  of  a  specilic  right  or  wrong ;  it  is  the  conscious- 
ness according  to  which  we  are  undeniably  aware  that  a 
difference  of  right  and  wrong,  good  and  bad,  exists.  Like 
every  species  of  consciousness,  that  of  our  existence  not 
excepted,  it  begins  with  an  indistinct  feeling,  and  becomes 
clearer  the  more  effectually  the  matured  mind  (both  matured 
by  the  age  of  the  individual  and  the  progress  of  civilization) 
acts  upon  it.  So  it  is  with  the  beautiful;  so  it  is  with  all  ideas 
we  receive  through  the  senses.  The  sense  of  sight  is  first  but 
dim.  The  mind  must  act  upon  the  impressions  received,  and 
the  sense  itself  must  be  practised,  before  it  becomes  clear. 
People  who  live  in  large  cities  see  nothing  but  one  vast  green 
mass  when  they  view  a  forest  from  the  top  of  a  hill ;  while 
the  practised  eye  of  a  hunter,  or  ranger  of  the  wood,  discerns 
at  once  numerous  and  important  differences.  Most  astonish- 
ing instances  of  the  degree  to  which  the  keenness  of  the  eye 
can  be  improved,  and  how  rapidly  it  may  work  in  observing 
distinctive  marks,  are  on  record ; '  yet  the  sense  of  sight  is 
innate,  or  the  idea  of  color  could  not  possibly  have  been 
arrived  at.  As  the  human  eye  observes  at  one  time  a  horse, 
at  another  a  stag,  and  as  the  intellect  arrives,  from  these  two 


no  other  sign  of  insanity  about  her,  except  the  enormity  of  the  crime  itself.  She 
sung  hymns,  was  peculiarly  sentimental,  vain,  etc.  See  her  biography  by  her 
"defensor,"  Dr.  F.  L.  Vogt,  Bremen,  1831,  one  of  the  most  awfully  interesting 
of  books  in  a  psychological  view. 

»  Thus,  the  English  papers  of  the  early  part  of  1 837  communicated  the  follow- 
ing fact,  with  names  of  persons  and  places,  so  that  little  doubt  as  to  the  truth  of 
the  matter  can  remain.  A  wager  was  won  in  the  parish  of  Rewe  by  a  Mr. 
"Whipple,  who  engaged  to  take  sixty  ewes  promiscuously  out  of  his  flock  and 
have  their  lambs  penned  off  from  them  at  a  distance ;  and  to  go  to  the  ewes,  fix 
iipon  one,  and  then  proceed  to  the  lambs  and  select  the  one  belonging  to  the 
former ;  the  next  time  to  fix  upon  a  lamb,  and  then  point  out  the  proper  dam 
among  the  ewes.  The  wager  was  won  without  a  single  mistake,  to  the  perfect 
satisfaction  of  the  judges— all  impartial  and  well-experienced  farmers. 


LOCKE'S   THEORY  OF  CONSCIENCE.  39 

perceptions,  at  the  perception  of  a  quadruped,  or  perhaps  at 
that  of  brown  color;  so  does  man  feel,  at  doing  certain  things, 
that  he  ought  to  have  done  them  or  not,  and  by  the  operation 
of  the  mind  constantly  analyzing  and  generalizing  he  arrives 
gradually  at  more  distinct  ethic  notions.^  Conscience  is 
developed,  cultivated,  made  delicate,  in  conjunction  with  re- 
flection, the  development  of  our  feelings  in  general,  and 
experience ;  but  the  consciousness  of  right  and  wrong  is  pri- 
mordial 2,nd  general.     On  this  last  point  I  shall  say  more. 

XV.  The  question  as  to  what  conscience  is,  and  even  as  to 
its  very  existence,  has  become  one  of  the  greatest  magnitude, 
since  some  philosophers  have  maintained  the  innateness  of 
certain  ideas,  and  others  have  denied  their  existence.  It  is  a 
fact  on  record  in  the  history  of  philosophy  that  some  have 
maintained  the  innateness  of  ready-made  ideas,  if  we  may  use 
this  expression.  On  the  other  hand,  those  who  denied  them 
confounded,  in  their  arguments,  ideas,  notions,  rules,  princi- 
ples, and  consciousness  with  what  is  arrived  at  in  conjunction 
with  this  consciousness  by  the  action  of  the  intellect  upon 
received  perceptions.  Locke,  one  of  the  foremost  of  those 
that  denied  innate  ideas,  is  likewise  one  of  the  foremost  in  this 
confusion  of  terms,  and,  at  times,  illogical  use  of  them.  He 
calls  conscience  "  our  own  opinion  or  judgment  of  the  moral 
rectitude  or  pravity  of  our  own  actions"  (Book  I.,  chap,  iii.. 
On  Human  Understanding),  and  then  proceeds  to  show  that 
it  cannot  be  inborn,  which  is  quite  correct,  for  the  very  term 
"  opinion"  involves  the  idea  that  it  is  something  arrived  at  by 
reflection.  Reflection  is  an  act  of  the  mind ;  how  can  it  then  be 
inborn?  A  faculty  may  be,  an  action  cannot.  But  though  it  is 
easy  to  refute  this  erroneous  definition  of  conscience,  he  uses, 
besides,  untenable  arguments  in  proof  of  his  position.  He 
applies  one  of  his  general  arguments  against  all  innate  ideas. 


'  [But  the  author  has  not  explained  the  passage  from  the  general  simple  idea 
of  right  or  wrong  to  the  feeling  or  conviction  that  a  particular  act  is  right  or 
wrong.] 


40  ETHICS  IN  GENERAL. 

also  against  the  innateness  of  conscience,  namely,  that  if  in- 
born they  must  be  as  active  in  the  child  as  in  the  adult.  If 
this  be  sound,  I  ask  whether  the  sense  of  sight  and  all  the 
other  senses,  upon  which  Locke  relies  so  firmly,  be  not  innate, 
because  Mozart,  when  an  infant  of  two  days  old,  was  certainly 
unable  to  distinguish  between  the  sweetest  harmony  and  a 
grating  discord  ?  Is  the  sense  for  harmony  not  inborn,  be- 
cause the  savages  know  nothing  of  the  concord  of  sounds 
If  not,  whence  do  we  derive  it  ?  Have  the  civilized  nation' 
agreed  to  be  delighted  with  accords  and  to  be  displeased  by 
discords?  Are  eighths,  fifths,  and  thirds  inventions?  Is 
sight  not  inborn,  because  the  puppy  is  born  blind  ?  This 
argument  of  Locke's  rests  upon  the  unfortunate  mistake 
which  so  many  millions  of  people,  whether  on  his  side  or 
not,  have  committed  in  confounding  the  idea  of  artificiality,  or 
unnaturalness,  with  that  of  development.  Thousands  of  the 
acutest  instincts,  which  cannot  possibly  be  denied  to  be  such, 
are  yet  not  active  in  the  young  animal.  Locke,  in  discussing 
the  innateness  of  conscience,  argues  altogether  on  moral 
rules,  and  even  then  he  does  not  use  the  proper  means ;  while 
at  other  times  he  says,  every  one  must  see  the  reasonable- 
ness of  a  certain  moral  act.  Nothing  is  easier  than  to  admit 
the  reasonableness  of  the  actions  mentioned  by  him,  if  we 
admit  the  primordial  consciousness  of  right  and  wrong;  if 
not,  the  very  word  reasonableness  does  not  apply  to  human 
actions  any  more  than  to  those  of  the  brutes.  The  animal  sees 
no  reasonableness  in  the  demand  that  it  must  not  kill  another 
for  trying  to  get  its  food,  obtained  by  hard  exertion.  Locke 
further  opposes  the  innateness  of  conscience  on  account  of 
the  variety  and  disagreement  of  moral  feelings.  This  is  not 
distinct;  moral  notions  vary,  the  feeling  does  not  except  in 
degree,  but  not  in  kind.  For  the  moral  feeling  furnishes  us 
with  nothing  more  than  the  consciousness  of  the  fact  that  we 
can  and  must  attribute  a  moral  character  to  our  actions,  i.e. 
to  ourselves.  We  waive  this  point,  however,  and  proceed  on 
Locke's  argument  itself.  According  to  him,  the  mind  is  a 
blank  paper  on  which  our  senses  write  impressions,  which 


LOCKE'S   THEORY  OF  CONSCIENCE. 


41 


the  intellect  analyzes  and  combines.  Now,  by  what  sense 
can  any  moral  notion,  be  it  the  humblest,  enter  into  our 
mind  ?  Things  themselves  are  black,  large,  ponderous,  etc., 
but  never  moral  or  immoral,  nor  are  the  outward  signs  or 
manifestations  of  actions  any  more  so ;  for  killing,  beating, 
speaking,  are  neither  moral  nor  immoral  of  themselves,  any 
more  than  the  axe  with  which  murder  has  been  committed. 
If  then  the  notion  of  morality  cannot  come  from  without,  it 
must,  according  to  him,  be  derived  from  the  intellect.  But 
the  intellect,  unaided  by  anything  else,  cannot  possibly  arrive 
at  any  other  idea  with  regard  to  actions  than  that  of  utility, 
efficacy,  expediency,  judiciousness,  or  the  contrary.  It  ana- 
lyzes and  combines  the  perceptions  of  things,  but  it  does  not 
infuse  new  elements  of  thought  or  feeling.  Again,  how  can 
he  in  his  way  explain  the  variety  of  moral  opinions  ?  There 
is  no  innate  consciousness  of  right  or  wrong,  he  says,  because 
there  are  various  opinions  respecting  the  morality.  If  so, 
then  there  are  no  innate  senses  and  no  innate  mind,  for  the 
variety  of  moral  opinions  would  prove  this  according  to  him- 
self The  truth  is,  the  variety  of  moral  opinions  is  owing  to 
the  intellect,  which  operates  with  the  moral  and  sensual  sen- 
sations combinedly. 

XVI.  Some  French  philosophers,  who  carried  the  theory  of 
Locke  to  an  extent  which  he  did  not  contemplate,  but  which 
was  nevertheless  a  consistent  progress  on  the  path  he  had 
begun,  and  who  did  not  stop  short  of  absolute  sensualism, 
have  endeavored  to  show  that  conscience  is  made  by  edu- 
cation, law,  government,  etc.  The  author  of  a  work  entitled 
Mes  reves,  ou  I  art  de  ne  pas  m'  cnnuyer,  ascribes  the  invetitioii  of 
conscience  to  the  Egyptian  priests  in  order  to  complete  human 
civilization — a  very  useful  and  wise  invention  !  When  was  the 
sense  of  sight  invented? 

If  we  ask  how  does  the  idea  of  good  or  bad  enter  the  human 
mind,  we  are  told  by  the  followers  of  the  theory  of  sensualism, 
because  we  have  been  told  so.  But  who  told  those  that  tell 
us  ?     I  declare  myself  utterly  at  a  loss  to  conceive,  even  for 


42 


ETHICS  IN  GENERAL. 


argument's  sake,  how  a  new  principle  can  be  talked  into  the 
human  soul,  not  to  speak  of  the  impossibility  of  making  any- 
thing universal  which  is  not  founded  upon  some  principle  in 
the  human  soul  itself.  The  objection  of  Locke  that  moral 
rules  require  proofs,  ergo  that  they  are  not  innate,  is  perfectly 
correct.  Moral  rules  cannot  be  innate  ;  for  rules  are  the  effect 
of  reasoning ;  though  I  shall  have  to  say  a  word  or  two  on 
this  point  also. 

XVII.  I  maintain:  i.  Conscience  is  universal.  2.  The 
uniformity  of  moral  rules  is  greater  than  their  disagreement, 
especially  with  civilized  people,  with  whom  this  consciousness, 
therefore,  as  every  other  species  of  consciousness,  has  been 
most  developed  and  shows  more  clearly  its  essential  nature. 

I.  Conscience  is  universal.  It  has  been  mentioned  already 
that  those  who  deny  the  innateness  of  conscience  cite,  as  one 
of  their  strongest  arguments,  not  only  the  difference  of  moral 
opinion,  but  the  fact  that  actually  some  tribes  consider  lauda- 
ble what  others  punish  or  would  punish  as  the  vilest  crime.  I 
do  not  deny  the  fact,  and  shall  bring  stronger  ones  than  Locke 
has  offered  ;  for  they  will  only  become  the  stronger  proofs  on 
our  side.  That  people  have  burnt  and  racked  their  fellow- 
creatures.  Catholics  Protestants,  and  Protestants  Catholics — 
some  of  whom  at  least  believed  they  did  right  while  they 
perpetrated  their  religious  crimes — every  one  knows  but  too 
well.  Yet  Locke  said  he  believed  in  the  Bible;  and. all  of 
those  persecutors  said  likewise  that  they  relied  for  the  recti- 
tude of  their  actions  on  this  book.  This,  then,  according  to 
Locke's  rule,  must  effectually  destroy  that  character  of  the 
Bible  which  he  nevertheless  ascribes  to  it.  Men  relish  very 
different  articles  of  food,  and  some  desire  what  to  others  is 
loathsome.  Does  there  exist  on  this  account  no  innate  in- 
stinct which  tells  us  that  we  must  eat  when  we  are  hungry, 
nor  any  innate  sense  of  taste  ? 

When  Bruce  first  published  his  account  of  Abyssinia,  people 
would  not  believe  that  the  inhabitants  of  that  country  feasted 
upon  meat  cut  out  of  living  oxen  close  by  the  fire,  so  that  the 


THE  BATTAS. 


43 


steak  may  be  swallowed  while  yet  quivering.  Alas !  facts 
worse  than  this  have  become  known  since  then.  The  Battas, 
a  nation  of  Sumatra,  eat  their  prisoners  alive,  after  regular 
trial,  if  found  guilty  of  adultery,  midnight  robbery,  intermar- 
rying in  the  same  tribe,  treacherous  attacks  on  a  house,  village, 
or  person,  or  if  the  prisoner  has  been  taken  in  wars  of  impor- 
tance. The  prisoner  is  tied  to  a  stake,  and  the  injured  party 
cuts  out  first  a  choice  piece,  which  is  immediately  dispatched, 
either  grilled  or  dipped  in  sambut — a  mixture  of  salt  and 
pepper.  Certain  parts  of  the  body,  as  the  palms  of  the  hands 
and  the  soles  of  the  feet,  are  considered  great  delicacies.  The 
heart  is  also  much  liked,  and  many  drink  the  blood  through 
bamboos.  What  makes  this  heart-rending  account  still  more 
appalling  is  the  fact  that  the  Battas  have  a  government,  write, 
cultivate  the  ground  extensively,  believe  in  a  God,  and  have 
many  fine  qualities,  superior  to  those  of  the  surrounding  na- 
tions. The  fact  cannot  be  doubted.  Sir  Stamford  Raffles 
investigated  the  subject  personally,  and  states  it  upon  unim- 
peachable testimony  in  a  letter  to  Mr.  Marsden,  dated  Feb- 
ruary 27,  1820.  (Life  and  Public  Services  of  Sir  Stamford 
Raffles,  4to,  p.  425.) "^  The  Battas  speak  of  this  cruelty  with 
the  utmost  calmness. 

But  we  need  not  go  to  what  we  are  in  the  habit  of  calling 
savage  tribes  to  find  instances  of  such  enormities.  The  Span- 
iards who  conquered  the  southern  continent  of  America  out- 
did all  cannibals  in  cruelty,  except  in  the  act  of  eating  human 
flesh.  This  might  increase  our  physical  disgust,  but  morally 
we  feel  more  disgusted  when  we  read  of  Indians  being  slowly 
roasted,  or  worn  down  by  excessive  labor,  to  satisfy  the  dia- 
bolic lust  for  gold, — when  we  find  the  names  of  mastiffs  handed 
down  to  posterity  because  they  distinguished  themselves  in 
hunting  and  tearing  the  Indians,  for  which  their  masters  re- 


'  An  extract  from  this  letter  may  be  found  in  a  volume  of  a  work  more 
generally  dififused, — namely,  The  New  Zealanders,  page  io8  et  seq.,  forming  the 
first  part  of  that  excellent  publication,  the  Library  of  Entertaining  Knowledge, 
published  under  the  superintendence  of  the  London  Society  for  the  Diffusion 
of  Useful  Knowledge. 


44 


ETHICS  IN  GENERAL. 


ceived  the  regular  share  of  booty  allotted  to  an  armed  man. 
Leoncico  was  the  name  of  the  bloodhound  belonging  to 
Nunez.  And  all  this  in  return  for  genuine  kindness  and 
humanity;  for  "the  Indians  always  did  more  (by  way  of 
hospitality)  than  they  were  bid  to  do,"  as  Bishop  Las  Casas 
testifies.  Refined  torments  were  paid  back  in  return  for  un- 
suspicious and  kind  reception.  (See  Voyages  and  Discoveries 
of  the  Companions  of  Columbus,  by  Washington  Irving,  Phil- 
adelphia, 1 83 1,  especially  the  Lives  of  Ojeda  and  Nuiiez.) 

I  was  walking  one  day  in  the  streets  of  Rome,  when  I  met 
with  a  nurse  who  had  strung  a  number  of  chafers  on  a  knitting- 
needle  in  order  to  amuse  the  infant  she  held  in  her  arm,  by 
the  contortions  of  the  tortured  animals.  When  I  expressed 
my  horror,  the  answer  was,  Ma  7ion  e  roba  battizata  (but  it  is 
unbaptized  stuff). 

Are  these  instances,  however,  anything  else  than  instances 
of  perverted  judgment  or  a  moral  feeling  which  has  been  un- 
fortunately made  callous  by  the  former  ?  The  Battas,  before 
they  eat  the  prisoner,  give  him,  according  to  their  notions,  a 
fair  trial ;  and  what  is  the  fundamental  idea  of  a  trial  ?  That 
justice  be  done.  But  what  kind  of  an  idea  is  justice,  if  not 
an  ethical  one?  The  animal  incited  to  eat  its  kind  would 
not  wait  in  this  case,  but  destroy  the  desired  object  at  once. 
Those  Spanish  adventurers,  cruel  almost  without  parallel, 
from  the  meanest  of  motives — the  yearning  for  riches — were 
most  "  chivalrous,  urbane,  and  charitable"  towards  each  other, 
ready  to  make  any  sacrifice.  Those  that  were  vindictive, 
bloodthirsty,  and  without  any  faith  towards  the  Indian  were 
magnanimous  and  full  of  honor  towards  each  other.  (See 
Irving,  as  above,  chap,  xii.,  Ojeda's  third  voyage.)  The  prin- 
ciple of  morality  had,  therefore,  not  been  plucked  out  of  their 
hearts  ;  but  bigotry  and  avarice  had  perverted  their  judgment 
and  moral  feeling.  The  Indian  was  not  considered  within  the 
pale  of  ethic  obligation. 

The  Italian  girl  would  have  felt  very  indignant  if  some 
other  cruelties  had  been  laid  to  her  charge.  I  have  become 
acquainted  with  the  existence  of  no  tribe,  however  low  or 


UNIVERSALITY  OF  CONSCIENCE.  45 

barbarous,  which  does  not  consider  some  things  right  or 
wrong  independently  of  their  desirableness.  The  account 
lately  given  by  Mrs.  Frazer  and  her  companions  in  misery, 
before  the  Loi^d  Mayor  of  London,  of  the  New  Zealanders, 
among  whom  they  were  wrecked,  and  who  at  times  eat  their 
own  children,  is  every  way  distressing  indeed  ;  but  these  same 
New  Zealanders  would  probably  have  been  very  angry  at  an 
ungrateful  return  to  an  act  of  kindness  on  their  part,  merely 
on  account  of  the  ingratitude  with  which  their  kindness  was 
requited. 

I  have  become  acquainted  with  the  life  and  actual  state  of 
mind  of  many  criminals,  and  never  have  I  met  with  any  con- 
vict, however  depraved  or  however  proud  of  the  crime  he  had 
perpetrated,  and  however  free  at  the  time  from  all  compunction, 
who  would  not  have  felt  incensed  at  the  imputation  of  some 
crimes  or  even  merely  immoral  acts,  for  instance,  that  of  be- 
traying his  wife.  A  remarkable  observation  I  have  made  is 
this,  that  {t\N  criminals — I  never  found  yet  one — are  willing 
to  confess  arson.  Any  other  crime  will,  at  times,  be  readily 
confessed,  but  not  arson.  Why?  Because  it  is  more  of  an 
imxputation  upon  the  honor  of  the  man ;  because  the  crime  is 
meaner,  i.e.  more  immoral,  in  the  eyes  of  the  criminal,  than  any 
other. 

The  fact  that  bands  of  criminals  will  always  form  a  certain 
moral  code  among  themselves,  shows  the  inalienably  moral 
character  of  man,  however  perverted  his  judgment  and  feeling 
may  be  by  passions.^  A  robber  says,  "  The  world  has  treated 
me  badly,  I  treat  it  badly  in  turn,"  or,  "  They  are  rich,  I  am 
poor:  why  should  I  remain  so?"  But  within  the  band  the 
same  robber  might  feel  indignant  at  theft  or  cheat.  The  same 
is  the  case  with  smugglers,  or  with  Christian  merchants  who 
smuggle  opium  into  China,  though  they  know  it  leads  to  the 
destruction  of  the  infatuated   buyers.'     They  may,  in  their 


'  *  Quin  etiam  leges  latronum  esse  dicuntur,  quibus  pareant,  quas  observent. 
Cic,  De  Off.,  ii.  11,  40. 

'  *  See,  for  the  quantity  smuggled  into  China,  Greenbook  Q,  p.  106.  Davis, 
The  Chinese,  i.  454,  et  seq.,  gives  reports  to  the  emperor,  and  edicts,  which  show 


46  ETHICS  IN  GENERAL. 

perverted  judgment,  consider  the  Chinese  out  of  the  pale  of 
civilization,  yet  the  consciousness  of  right  and  wrong  has  not 
left  them  on  this  account.  It  cannot  be  torn  from  the  human 
soul.  • 

XVIII.  2.  The  uniformity  of  moral  rules  is  greater  than 
their  disagreement.  The  moral  codes  of  nearly  all  nations 
prove  it.  They  all,  for  instance,  disapprove  of  murder,  i.e.  the 
taking  away  human  life  maliciously  or  uselessly,  but  they 
disagree  as  to  what  useless  is.  They  disapprove  of  theft,  but 
they  do  not  agree  on  what  constitutes  theft,  e.g.  at  Sparta  a 
youth  might  steal  some  things,  but  only  such  as  the  law  did 
not  forbid.  This  will  appear  much  clearer  when  we  come  to 
speak  of  the  general  moral  law.  Here  we  merely  add  that 
there  is  a  natural  or  innate  horror  at  certain  specific  crimes, 
which  cannot  be  denied.  We  know  that  man  can  be  recon- 
ciled to  the  worst  by  custom,  yet,  on  the  other  hand,  it  takes 
time  to  denaturalize  him  as  to  some  actions,  for  instance, 
murder.  In  a  work  of  thrilling  interest,  lately  published  at 
Calcutta,'  an  authentic  account  is  given  of  the  thugs — that 
religious  fraternity  of  strangling  thieves  in  the  East  Indies. 
We  find  there,  from  the  testimony  of  many  thugs,  witnesses 
perfectly  respectable,  and  who  are  borne  out  by  the  most 
intelligent  Europeans  resident  in  the  East,  that  there  has 
existed  for  centuries  an  extensive  sect  of  robbers,  who  have 
carried  on  murder  and  robbing  so  systematically  and  profes- 
sionally that  strangling  became  a  species  of  art,  a  trade  with 


the  frightful  consequences.     The  soldiers  against  the  late  rebels  were  found  good 
for  nothing,  among  other  reasons,  on  account  of  the  many  opium-smokers. 

'  This  work,  with  which  I  am  acquainted  through  extracts  only,  given  in  an 
article  to  be  found  in  the  January  number  of  1837  of  the  Edinburgh  Review,  is 
entitled  Ramaseeana,  or  a  Vocabulary  of  the  Peculiar  Language  used  by  the 
Thugs :  with  an  Introduction  and  Appendix,  descriptive  of  the  System  pursued 
by  that  Fraternity,  and  of  the  Measures  which  have  been  adopted  by  the  Su- 
preme Government  of  India  for  its  Suppression;  8vo,  Calcutta,  1836.  When  the 
article  was  writing,  the  printed  work  had  not  yet  been  published.  Since  the  pre- 
ceding lines  were  written,  a  work,  Illustrations  of  the  History  and  Practices  of 
the  Thugs,  etc.,  London,  1838,  ha;  "^een  published. 


THE    THUGS. 


47 


proper  technicalities  and  requiring  a  long  and  patient  appren- 
ticeship. Thoi^ands  have  belonged  to  this  sect,  and  not  one 
ever  felt  remorse  at  what  he  had  done.  Nor  was  this  dia- 
bolical trade  £fttractive  by  its  perils  and  excitements,  so  as  to 
appease  the  conscience  of  the  adventurer  by  his  own  personal 
exposure  to  danger,  which  not  unfrequently  appears  to  the 
daring  criminal  as  equalizing  the  state  of  things  between  the 
robber  and  the  robbed.  On  the  contrary,  the  thug  inveigles 
and  tries  with  infinite  patience  to  gain  the  confidence  of  the 
traveller,  until  at  the  proper  place  and  time  he  strangles  his 
victim  while  the  apprentice  holds  his  legs  in  perfect  security. 
They  infest  land  and  river  under  all  guises,  make  no  distinc- 
tion as  to  sex  or  age,  to  confidence  shown  them,  or  reliance 
placed  upon  their  protection.  The  account  given  in  the  work 
alluded  to,  with  all  its  horrors,  the  utter  absence  of  what  we 
expect  to  find  with  most  people,  the  monstrous  perversion  of 
judgment  and  of  religion,  which  here  again  is  made  to  appease 
conscience  and  to  annihilate  the  simplest  elements  of  morality, 
for  which  zealots,  barbarians,  and  criminals  have  at  all  ages 
perverted  it,  is  sickening  and  humiliating  indeed — and  proba- 
bly more  so  than  the  barbarity  of  the  Batta  when  he  cuts  a 
slice  from  his  living  enemy ;  yet  we  must  not  forget  that,  mon- 
strous as  thuggee  is,  the  thug  never  pretended  to  be  absolved 
from  the  general  rule  of  morality,  never  denied  the  difference 
between  right  and  wrong.  He  throttles  to  rob  indeed,  but  the 
murdered  person  is  but  the  victim  thrown  into  his  hands  by 
Devee  or  Kalee,  the  goddess  of  destruction  of  Hindoo  my- 
thology, and  the  only  one  requiring  human  sacrifices,  a  god- 
dess acknowledged  by  all  Hindoos,  yet  especially  worshipped 
by  the  professional  stranglers,  hervotaries — "  several  thousands 
of  persons  pursuing  murder  as  a  trade,  generation  after  gen- 
eration, not  one  of  whom  entertained  the  least  suspicion  that 
he  was  doing  wrong."  A  convenient  mythology  of  their  god- 
dess explained  why  they  pursued  murder  in  this  way,  and  why 
they  were  right  in  doing  so,  even  though  they  murdered,  ac- 
cording to  their  own  confession,  for  robbery  alone.  The  thug, 
however,  thought  no  strangled  person  would  haunt  him,  be- 


48  ETHICS  IN  GENERAL. 

cause  the  victim  thus  offered  to  his  goddess  went  directly  into 
paradise.  The  thugs  are  generally  amiable  r^n  at  home  and 
in  society,  good  fathers  and  husbands,  and,  with  the  exception 
of  thuggee  (thuggism),  belong  to  the  most  peaceable  class  of 
citizens.  But  in  this  book  we  do  not  meet  merely  with  facts 
which  show  that  mistaken  religion  can  silence  any  voice  within 
us,  and  mistaken  religion  more  quickly  and  effectually  than 
anything  else ;  we  find,  on  the  other  hand,  that  the  human 
heart  requires  at  least  an  apprenticeship  to  become  inured  to 
the  trade  of  murder.  "They  (the  apprentices)  neither  see 
nor  hear  anything  of  murder  during  the  first  expedition. 
They  know  not  our  trade; — they  get  presents,  purchased  out 
of  their  share,  and  become  fond  of  the  wandering  life,  as  they 
are  always  mounted  upon  ponies.  Before  the  end  of  the 
journey,  they  know  that  we  rob.  The  next  expedition,  they 
suspect  that  we  commit  murder,  and  some  of  them  even  know 
it;  and  in  the  third  expedition  they  see  all."  Amidst  the 
testimony  of  so  much  cold-blooded  murder,  the  reader  feels 
almost  relieved  for  a  moment,  by  way  of  vindication  of  human 
nature,  when  perusing  the  passage  in  which  a  witness  testifies 
that  his  cousin  Kurhora  was  taken  for  the  first  time  to  a  thug 
expedition  when  about  fourteen  years  of  age.  By  an  over- 
sight of  the  person  who  had  charge  of  him,  while  the  stran- 
gling of  many  persons  was  going  on,  Kurhora  escaped  and 
rode  up  to  the  scene  of  murder,  where  he  was  so  overcome  by 
the  shocking  transaction  that  the  sight  of  the  turbans  of  the 
murdered  men  made  him  delirious  ;  he  uttered  screams  at  the 
approach  of  a  thug,  and  before  evening  arrived  he  was  dead. 
We  owe  an  active,  well-concerted,  and  effectual  suppression  of 
the  thugs  to  Lord  Bentinck,  governor-general  of  India,  who 
has  inscribed  his  name  on  the  pages  of  the  history  of  civil- 
ization by  abolishing  the  suttees,  as  well  as  whipping  in  the 
native  British  army  of  the  East. 

Not  only  are  moral  codes  more  uniform  than  it  has  been 
frequently  supposed,  but  even  the  laws  of  nations.  Still,  though 
they  were  far  less  uniform,  it  would  prove  nothing  against  our 
position      We  contend  here  that  the  moral  principle  is  abso- 


UNIFORMITY  OF  MORAL    CODES. 


49 


lute  and  universal.  Nations  may  rest  in  very  different  ways, 
sitting,  reclining  in  hammocks,  or  lying  on  couches,  but  all  must 
acknowledge  the  principle  that  rest  is  requisite  after  exertion. 

With  regard  to  the  uniformity  even  of  laws,  I  cannot  but 
conclude  this  section  with  an  extract  from  Mr.  Michelet's  Origin 
of  French  Law,  lately  published.     He  says  : 

"  We  have  studied  the  juridical  symbol  under  the  two  points 
of  view  of  its  age  and  its  nationality,  which  diversify  it  infi- 
nitely. Nevertheless,  whatever  variety  may  be  discovered,  unity 
predominates.  It  is  an  imposing  spectacle  to  find  the  principal 
legal  symbols  common  to  all  countries,  throughout  all  ages. 

"  In  truth,  to  one  who  considers  not  the  human  race  as  the 
great  family  of  God,  there  is  in  those  multitudinous  voices, 
out  of  hearing  of  each  other,  and  which  nevertheless  respond 
each  to  each  from  the  Indies  to  the  Thames  in  reciprocating 
sounds,  wherewithal  to  dismay  the  intelligence,  to  strike  the 
heart  and  spirit  of  man  with  consternation. 

"  Transporting  was  the  emotion  which  I  myself  experienced 
when  for  the  first  time  I  heard  this  universal  acclaim.  Unlike 
the  skeptic  Montaigne,  who  so  curiously  ferreted  out  the  cus- 
toms of  different  nations  to  detect  their  moral  discordancies, 
I  have  found  a  consentaneous  harmony  among  them  all.  A 
sensible  miracle  has  arisen  before  me.  My  little  existence  of 
the  moment  has  seen  and  touched  the  eternal  communion  of 
the  human  race." 

Far  more  striking,  however,  is  the  uniformity,  or,  at  least, 
agreement,  of  the  moral  views,  when  we  observe  the  daily  in- 
tercourse of  individuals  and  nations.  There  are  many  excep- 
tions, undoubtedly,  and  yet  they  are  after  all  but  exceptions; 
but  they  attract  more  attention  because  they  are  exceptions. 
Let  a  foreigner,  a  European,  join  a  caravan  of  Arabians,  and 
observe  how  much  more  they  ethically  agree  than  disagree, 
though  born  in  different  climes,  nurtured  by  different  associa- 
tions, reared  in  different  religions.^ 


*  *  The  moral  and  legal  maxims  of  no  nation,  perhaps,  in  this  respect  are  more 
interesting  to  us  than  those  of  China,  because  they  have  been  settled  and  devel- 

4 


50  ETHICS  IN  GENERAL. 

XIX.  One  question  remains  to  be  answered, — namely,  Is  not 
sympathy  alone  sufficient  to  explain  the  phenomena  of  the 
moral  world,  if  we  consider  this  deeply-seated  feeling  under 
the  refining  and  perfecting  action  of  the  intellect  ?  Not  a  few 
philosophers  have  thought  that  it  is. 

I  do  not  only  admit  sympathy  as  one  of  the  elementary 
agents  in  the  moral  world,  but  I  claim  it  as  the  most  active 
primitive  element  in  everything  by  which  man  is  tied  to  man. 
Though  of  an  inexplicable  and  mysterious  origin,  though  in 
many  cases  of  a  decidedly  animal  character  in  its  first  begin- 
ning, yet  man  unfolds  and  perfects  it  to  a  degree  that  it  stands 
before  us  a  subject  as  sacred  as  anything  that  can  inspire  the 
human  breast  with  pure  and  elevated  feelings.  Is  there  a  more 
sacred  relation  between  man  and  man  than  that  of  a  wise  and 
proud  mother  and  her  affectionate  and  devoted  son  ?  Yet  in 
its  first  origin  maternal  love  in  the  human  race  is  the  same 
instinctive  affection  we  meet  with  in  the  brute  creation.  Nor 
does  it  stop  here.  There  are  many  striking  instances  of  a 
continued  animal  affection  for  the  young,  which,  in  default 
of  offspring,  passes  over  to  that  of  other  parents.  A  colored 
woman  has  come  under  my  personal  observation,  who  keeps 
herself  continually  surrounded  with  several  pets,  as  she  calls 
the  infants  which  she  begs  of  her  acquaintances  that  she  may 
have  the  pleasure  of  bringing  them  up.  The  name  she  gives 
to  these  children  sufficiently  indicates  her  feeling  and  relation 
towards  them.  It  is  that  fondling  love  which  we  observe  so 
strongly  developed  in  some  animal  tribes.  This  woman  takes 
no  compensation  for  that  which  to  others  would  be  trouble, 
but  to  her  affords  the  enjoyment  that  every  creature  derives 
from  satisfying  a  desire  deeply  planted  in  it  by  nature.  Her 
entreaties  to  give  up  to  her,  but  for  the  limited  time  of  a  year 
or  so,  an  infant,  are  very  striking. 


oped  in  entire  independence  of  the  course  of  civilization  to  which  we  owe  ours. 
The  perusal,  therefore,  of  trustworthy  and  accurate  works  on  that  country,  is  of 
much  value.  See,  especially,  The  Chinese,  by  T.  F.  Davis,  late  Chief  Super- 
intendent in  China,  London,  1836,  2  vols., — especially  chapters  xii.,  xiii.,  and 
xiv.  of  vol.  ii. 


SYMPATHY.  51 

Though  so  deeply  implanted  and  of  so  active  a  nature, 
however,  sympathy  is  not  sufficient  to  account  for  the  moral 
character  of  man.  In  numerous,  perhaps  in  most,  cases,  sym- 
pathy forms  a  component  part  of  our  moral  actions,  but  in 
some  it  is  directly  opposed  to  our  conscience;  cases  of  this 
kind  are  by  no  means  of  rare  occurrence.  The  judge  who 
passes  sentence  on  a  prisoner  is  not  supposed  to  be  dead  to 
all  sympathy  with  the  unfortunate  convict.  No  person  that 
knows  anything  of  the  secret  history  of  criminals  and  of  him- 
self can  go  through  a  penitentiary  without  confessing  that, 
had  he  passed  from  childhood  through  the  same  circumstances 
and  scenes  which  encompassed  many  inmates  of  the  prison 
from  their  earliest  years,  he  probably  too  would  be  in  the  same 
unfortunate  situation.  Yet  this  individual  may  be  at  the  same 
time  a  strict  and  conscientious  superintendent  of  the  peniten- 
tiary. A  soldier  who  fights  faithfully  and  boldly  for  his  coun- 
try is  not  on  that  account  destitute  of  sympathy,  not  even  at 
the  very  moment  he  fires  upon  the  enemy.  There  is  no  battle 
which  does  not  afford  evidences  of  this  fact.  Sympathy  alone, 
or  in  conjunction  with  the  intellect  ortly,  could  not  have  led 
man  to  the  idea  of  morality  and  immorality,  of  right  and 
wrong.  It  would,  indeed,  have  prevented  the  perfectly  clear 
perception  of  the  idea.  It  may  be  concentrated  to  such  a 
degree  that  it  becomes  mere  passion,  as,  for  instance,  in  some 
cases  of  affection  towards  a  particular  individual,  with  regard 
to  whom  nevertheless  no  other  natural  instinct,  such  as  that 
existing  between  the  sexes,  can  be  alleged,  in  which  latter  case 
love  appears  to  me  sympathy  concentrated  both  in  its  intensity 
and  in  relation  to  the  person  towards  whom  sympathy  acts 
Sympathy  may  be  increased  to  such  a  degree  that  it  becomes 
disgusting,  because  it  sinks  to  a  wild,  almost  brutish  intensity 
"  Spencer  tells  us  that  once,  when  he  was  present  at  Limerick 
at  the  execution  of  a  notable  traitor,  Murrogh  O'Brien,  he  saw 
an  old  woman,  his  foster-mother,  take  up  the  head  and  suck 
the  blood,  saying  that  the  earth  was  not  worthy  to  drink  it 
and  then  steep  her  face  and  breast  in  the  streams  which  flowed 
from  his  other  quarters,  while  she  tore  her  hair  and  shrieked 


52  ETHICS  IN  GENERAL. 

most  terribly."  ^  We  are  obliged,  then,  to  acknowledge  con- 
science as  an  original  and  primitive  consciousness,  though  we 
allow  sympathy  to  be  a  most  active  and  indispensable  element 
in  man  in  general,  and  a  powerful  coefficient  in  moral  actions. 


'  I  copy  this  account  from  vol.  i.,  page  445,  of  Brodie's  Histr^T^  of  the  British 
Empire,  Edinburgh,  1822.  « 


CHAPTER    III. 

Ethic  Character  of  Man. — How  does  Conscience  act  ? — Is  it  alone  an  Oracle 
or  perfect  Index? — Practical  Moral  Law. — Man's  Individuality. — Morality 
founded  upon  it. — Our  Ethic  Character  is  inalienable,  hence  our  Responsibility 
likewise. — Ethic  Experience  and  Skill. — Various  Ethic  Systems. 

XX.  Superior  intellect,  peculiarly  expansive  and  refinable 
sympathy,  freedom  of  will  and  rationality  (or  self-determina- 
tion of  volition)  and  conscience  constitute  man's  ethic  char- 
acter— his  moral  dignity,  the  acknowledgment  of  which  alone 
is  sufficient  to  make  us  at  once  conscious  of  the  great  law, 
"  Thou  shalt  not  debase,  in  thyself  or  in  any  fellow-man,  man's 
moral  dignity;"  a  fundamental  law  from  which  we  derive,  in 
ethics,  the  duties  of  man;  in  natural  law,  his  rights.  The 
very  character  of  the  ethic  attributes  of  man  involves  the 
direct  acknowledgment  of  the  law  just  mentioned.  Conscience 
tells  us  so ;  we  cannot  do  otherwise ;  we  must  acknowledge 
it,  it  is  "  a  law  written  in  our  hearts,"  it  is  the  law  which  rests 
on  the  consciousness  of  right  and  wrong,  or  by  which,  as  tl.e 
apostle  expresses  it,  men  are  a  law  unto  themselves.'  If  it  be 
denied,  we  could  not  prove  it ;  if  a  man  should  say,  I  deny  the 
moral  value  of  man,  I  use  every  one  simply  according  to  my 
interest  or  gratification,  I  want  to  make  my  children  brutes, 
I  want  to  kill  men  as  I  kill  animals — we  could  do  nothing 
but  refer  him  to  his  own  conscience  and  to  his  own  acts, 
inasmuch  as  he  will  never  allow  a  wrong  done  against  him 
to  pass  without  charging  the  offender  with  the  wrong,  or 
without  making  him  accountable,  which  is  nothing  less  than 


*  "  For  when  the  Gentiles,  which  have  not  the  law,  do  by  nature  the  things 
contained  in  the  law,  these,  having  not  the  law,  are  a  law  unto  themselves 
[iavTotg  v6/ioc) ;  which  show  the  work  of  the  law  written  in  their  hearts,  their 
conscience  also  bearing  witness,  and  their  thoughts  the  mean  while  accusing  or 
else  excusing  one  another."     Romans  ii.  14,  15. 

53 


54 


ETHICS  IN  GENERAL. 


attributing  to  him  a  moral  character.  Reason,  therefore, 
which  makes  us  acknowledge  this  law  at  once,  not.  by  induc- 
tion, syllogism,  or  any  proof  or  process  of  reasoning,  is  said 
to  possess  in  this  case  autonomy,  i.e.  it  is  its  own  law;  or  the 
law  itself  as  such,  is  acknowledged  at  once,  from  ah-zo:;^  self, 
and  VO//.OC,  law. 

XXI.  The  superior  intellect  of  man  has  been  enumerated 
among  his  ethic  attributes,  because  it  is  as  indispensable  an 
element  of  his  ethic  character  or  moral  dignity  as  any  other 
which  has  been  mentioned.  It  is  an  unfortunate  mistake, 
both  in  those  who  pretend  to  deny  the  original  existence  of 
conscience  and  many  of  those  who  mean  to  act  by  it,  that 
conscience  consists,  as  it  were,  of  one  list  of  actions  which  we 
ought  to  do,  and  another,  of  those  which  we  ought  not  to  do, 
or  of  a  sort  of  gauge,  which  in  each  single  case  will,  without 
previous  cultivation  or  perfection,  indicate  infallibly  what 
ought  to  be  done,  an  oracle  which  needs  but  to  be  referred  to 
in  order  to  receive  a  ready  answer.  That  this  is  not  the  case 
appears  at  once  from  two  facts  :  first,  we  find  that  people  have 
at  times  committed  the  most  atrocious  acts,  not  only  without 
feeling  any  compunction  whatever,  as  in  the  case  of  the  thugs, 
but  at  times  feeling  actually  decided  self-applause.  There  is 
no  ground,  that  we  know  of,  to  doubt  that  Ravaillac  was  per- 
fectly at  peace  with  his  conscience,  as  to  the  correctness  of 
his  act,  when  he  plunged  the  dagger  into  Henry's  heart. 
Criminal  and  mean-spirited  as  at  all  times  many  of  the  religious 
persecutors  have  been,  there  cannot  be,  on  the  other  hand,  any 
doubt  but  that  many  thought  that  they  were  doing  a  most 
praiseworthy  work  while  they  heaped  the  fagots  around  a 
God-devoted  heretic.  Besides,  every  individual  knows  from 
personal  experience  that  in  the  moral  progress  of  the  soul  he 
will  now  desist  from  doing  things  respecting  the  morality  of 
which  at  a  former  period  he  never  even  entertained  a  doubt. 
Secondly,  if  conscience  were  so  simple  and  clear  an  index  in 
every  given  case,  however  complex,  how  should  it  happen 
that  the  conscientious  find  themselves  much  embarrassed  in 


PRACTICAL  MORAL  LAW.  re 

cases  of  conflict — the  more  so  the  more  they  are  animated  by 
an  upright  desire  to  do  only  what  is  right  ? 

In  this  case,  as  in  all  similar  ones,  God  has  given  us  the 
principles,  the  seeds ;  but  he  has  not  willed  to  make  of  men 
machines  without  the  necessity  of  their  own  independent 
mental  and  moral  life  being  developed  and  cultivated.  As  I 
said,  that  this  world  would  not  have  a  moral  character  if  a 
withering  disease  were  sure  to  consume  the  arm  that  steals, 
so  would  the  character  of  man  not  be  much  more  elevated  if 
actually  a  sort  of  list  of  all  good  actions  were  written  in  the 
human  heart,  or  if  a  certain  and  distinct  sign,  not  to  be  mis- 
taken, were  given  at  every  action  by  way  of  approval  or  dis- 
approval, however  complex  its  character  might  be,  on  account 
of  a  conflict  of  the  most  sacred  interests.  We  are  ordained 
to  be  men,  and  not  to  be  impelled  in  morals  in  a  similar  way 
as  w^e  have  seen  that  the  animal  is  by  its  senses.  Man,  under 
all  circumstances,  should  guide  his  volition  by  the  action  of 
the  reflecting  intellect.  There  is  a  pain  we  feel  at  having 
done  wrong — who  would  say  he  never  felt  it  ?  But  this  very 
pain,  or  the  pleasure  in  good  actions,  is  subject  to  reflection. 
We  have  then  to  cultivate  the  original  consciousness  of  rieht 
and  wrong  by  reflection.  Man  does  not  live  long,  even  in 
the  rudest  stages  of  society,  without  feeling  approval  or  dis- 
approval at  certain  actions  independently  of  their  judicious- 
ness or  expediency.  These  actions  are  gradually  made  the 
subject  of  reflection,  the  character  of  this  approval  or  dis- 
approval is  meditated  upon,  and  finally  man  arrives  at  certain 
ethic  results,  clearly  represented  to  his  mind, 

XXII.  The  consciousness  that  we  ought  to  do  right  and 
ought  not  to  do  wrong,  and  the  great  ethic  law,  which 
springs,  as  we  have  seen,  directly  from  the  ethic  nature  of 
man,  make  it  necessary  that  we  should  not  only  express  our 
moral  obligation,  but,  if  possible,  find  a  supreme  law  which 
may  serve  as  a  test  for  our  actions,  by  which  in  practice  we 
may  be  more  easily  guided — a  law,  or  norma,  of  practical  use 
— the  law  of  virtue,  as  it  has  been  called.     Most  philosophers. 


56  ETHICS  IN  GENERAL. 

and  many  founders  of  religion,  have  endeavored  to  establish 
a  law  of  this  sort,  and  it  is  cheering  to  the  human  heart  to 
find  how  many  of  these  have  agreed  upon  so  essential  a  point, 
though  separated  by  time  and  space  in  a  manner  that  they 
could  not  be  influenced  by  one  another.  It  amounts  prac- 
tically always  to  this  :  "  Do  or  omit  that  which  thou  desirest 
that  others  do  or  omit."  We  have  of  course  to  settle  what 
we  desire  of  others,  for  we  might  desire  very  immoral  things. 
A  debauched  person  would  be  perfectly  willing  to  allow  others 
whatever  vicious  gratification  they  might  desire,  provided 
they  allow  him  to  go  on  as  he  chooses  ;  and,  on  the  other 
hand,  man  rises  highest  when  he  is  willing  to  make  sacrifices 
to  others  which  he  does  not  desire  others  to  make  for  him, 
when  he  frees  himself  from  all  egotism.  Nevertheless,  the 
law  will  be  found  of  great  practical  use  if  applied  with  good 
faith,  for  the  very  reason  that  it  seeks  for  the  regulator  of 
actions  in  our  self-interest,  and,  therefore,  comes  practically 
home  to  a  greater  number  of  people  than  any  other  law  that 
could  be  devised.  The  law  is  especially  important  with  re- 
gard to  actions  towards  others,  and  includes  all  that  belong 
to  justice. 

The  great  philosopher  Kant  has  expressed  it  scientifically 
thus :  "  Consider  constantly  and  without  exception  the  intelli- 
gent being  as  being  its  own  proper  end  and  which  can  never 
become  a  simple  means  for  the  ends  of  another;"  and  by  this 
other  formula :  "  Act  always  in  such  a  manner  that  the  imme- 
diate motive  or  maxim  of  thy  will  may  become  a  universal 
rule  in  an  obligatory  legislation  for  all  intelligent  beings." 
This  fundamental  moral  law  Kant  calls,  in  his  philosophical 
system,  the  categoric  imperative,  because  it  demands  without 
proof,  and  every  intelligent  being  must  acknowledge  its  ne- 
cessity, the  justness  of  the  demand. 

We  find  in  Tobit  iv.  15,  "  Do  that  to  no  man  which  thou 
thyself  hatest."      One   of  the   fundamental   Chinese  works,' 

'  This  passage  is  taken  from  Tshung  Yung  (or  Invariable  Middle),  one  of  the 
four  Chinese  works  called  by  the  Chinese  The  Four  Books,  or  The  Books  of  the 
Four  Doctors.     See  Abel  Remusat,  Nouveaux  Melanges  Asiatiques,  Paris,  1829, 


MAN'S  INDIVIDUALITY. 


57 


written  about  453  before  Christ,  contains  this  dictum:  "He 
who  is  sincere  and  attentive  to  do  nothing  to  others  which 
he  would  not  Hke  them  to  do  to  him,  is  not  far  from  the  law; 
he  who  desires  that  nothing  be  done  to  him  which  he  him- 
self does  not  to  others." — "  Therefore  all  things  whatsoever 
ye  would  that  men  should  do  to  you,  do  ye  even  so  to  them." 
(Matthew  vii.  12.)  It  will  be  perceived  that  this  moral  law  is 
nothing  else  than  the  abstraction  or  generalization  of  the 
primary  ethic  consciousness  spoken  of  in  sec.  xiii.  chap.  ii. 
of  this  book,  manifesting  itself  in  a  feeling  "lie  ought!'  Man 
probably  becomes  conscious  of  this  ethical  "he  ought"  in 
perceiving  the  acts  of  others,  and,  by  natural  generalization, 
is  bound,  again  with  the  assistance  of  his  ethic  consciousness, 
to  include  himself  in  the  abstraction  by  which  he  arrives  at 
the  above  law. 

XXIII.  Man's  whole  ethic  character  is  materially  founded 
upon  or  can  be  imagined  only  in  conjunction  with  his  indi- 
viduality. Man's  individuality  and  sociality  form  the  two 
poles  round  which  his  whole  life  revolves.  Of  the  latter — the 
peculiarity  in  man  that  he  can  fulfil  his  destiny  in  a  state  of 
society  with  others  only,  and  that  he  has  to  bear  weal  and 
woe  jointly  with  his  fellow-creatures — I  shall  have  to  say  more 
in  the  second  book.  As  to  his  individuality,  it  is  necessary 
to  observe  that  man  is  what  he  is,  first  and  essentially,  as  an 
individual.  His  senses,  perceptions,  thoughts,  pleasures,  pains, 
emotions,  his  reasoning,  appetites,  and  endeavors,  are  indi- 
vidually his  own,  as  much  as  his  eating,  respiration,  digestion, 
are  individually  his  own.  Philosophically  speaking,  he  can- 
not act  through  another;'  his  acts  are  his  own  ;  for  if  he  be 


vol.  ii.  p.  112. — Tlie  Invariable  Middle  treats  in  thirty-three  chapters  of  the  middle, 
a  sort  of  moral  state  towards  which  all  human  actions  ought  to  have  a  tendency, 
and  which  alone  is  compatible  with  the  inspirations  of  heaven,  the  objects  of  na- 
ture, the  voice  of  reason,  the  dictates  of  wisdom,  and  the  practice  of  virtue.  The 
author  of  this  work  was  the  grandchild  of  the  great  Confucius  ;  he  died,  sixty-two 
years  old,  about  453  before  Christ.  His  surname  as  philosopher  is  Tsze-sze, 
translated  by  the  missionaries  into  Interpreter  of  Holiness. 

'  "When  we  say  in  common  life,  "  he  acts  through  an  agent,"  we  mean,  philo- 


58 


ETHICS  IN  GENERAL. 


forced  to  do  anything  against  his  will,  he  does  not  act  in  the 
philosophical  sense  of  the  term,  but  he  suffers,  is  in  a  passive 
state.  Action  presupposes  free  agency.  Man's  responsibility 
is  his  own,  for  his  reasoning  and  acting  are  his  own.  Fault, 
crime,  virtue,  excellence,  goodness  or  immorality,  are  his  own, 
and  belong  exclusively  to  the  individual.  Words  have  either 
a  sense  or  not.  If  the  words  Accountable  or  Responsible 
signify  anything,  they  involve  the  idea  that  I  might,  and,  if  I 
have  acted  wrong,  ought  to  have  acted  differently,  which  pre- 
supposes free  will  and  individuality.  For  if  my  hands  are 
bound  I  cannot  be  accountable  for  not  assisting  a  fellow- 
creature  in  distress,  nor  have  I  free  will  except  with  regard 
to  myself,  because  my  volition  is  confined  to  myself,  whom 
God,  for  this  purpose,  has  constituted  as  a  definite  individual. 
"  God,  who  will  render  to  every  man  according  to  his  deeds." 
(Rom.  ii.  6.)  "  Single  is  each  man  born  ;  single  he  dieth  ; 
single  he  receiveth  the  reward  of  his  good,  and  single  the 
punishment  of  his  evil  deeds."  Ordinances  of  Menu,  translated 
by  Sir  William  Jones,  London,  1799,  ch.  iv.  p.  240,  or  page 
19  of  vol.  iii.  of  Sir  William  Jones's  Works,  4to  edit. 

He  alone  that  zvills  acts,  and  he  that  acts  is  responsible.  If 
a  man  lets  loose  a  tiger  upon  a  multitude,  knowing  the  nature 
of  the  tiger,  he  is  the  murderer  of  all  whom  the  tiger  may 
kill,  and  the  maimer  of  all  whom  he  may  lacerate  and  wound. 
For  the  tiger  is  bound,  following  simply  its  sensualism,  but 
the  man  is  free. 

Trite  as  these  remarks  may  appear  if  thus  clearly  and 
separately  stated,  they  have  been  by  no  means  always  ac- 
knowledged either  in  religion  or  law. 

XXIV.  The  penal  codes  of  all  civilized  nations  recognize 
individual  indictments  and  punishments  only.  No  body  of 
men,  corporation,  or  society  can  be  arraigned  for  a  penal  offence, 
thouo-h  each  and  every  individual  may  have  borne  an  active 

sophically  speaking,  that  he  himself  acts,  and  by  thus  acting  induces  his  agent  to 
act  likewise,  so  that  there  are  two  acting  individuals.  No  action  without  indi- 
vidual. 


NO   CRIME  WITHOUT  INDIVIDUAL.  59 

share  in  it,  because,  as  has  been  stated  in  the  preceding  sec- 
tion, responsibihty  is  and  forever  must  be  inseparably  con- 
nected with  individuality.  A  body  of  men  may  be  sentenced 
to  damages ;  for  they  may  civilly  form  a  so-called  moral 
person  in  the  eye  of  the  law,  that  is  to  say,  a  society  with 
certain  peculiar  civil  rights  and  obligations  common  to  all 
the  members ;  but  no  ethic  idea  is  connected  with  such  a 
damage,  and  the  whole  body  cannot  be  sentenced  to  imprison- 
ment for  a  crime,  though  each  individual  member  may.  Those 
only  who  committed  the  crime,  e.g.  by  voting  for  it,  or  having 
a  hand  in  executing  it,  can  be  made  responsible.  Thus,  a 
merchant  is  not  liable  to  punishment  because  his  partner  com- 
mitted forgery,  though  closely  connected  with  the  commercial 
transactions  of  the  house.  Confusion  of  ideas,  which  in  the 
course  of  civilization  almost  always  precedes  clear  distinc- 
tion, as  well  as  a  desire  of  revenge,  have  often  induced  man 
to  act  upon  opposite  principles.  An  interesting  instance  of 
this  confusion  of  ethic  ideas  will  be  found  below.^  When  the 
Robespierrian  Committee  of  Public  Welfare  w^as  brought  to 


'  The  following  appeared  to  me  so  remarkable  an  instance  of  deviation  from 
the  principle  that  all  morality  is  inseparably  connected  with  individuality,  that  I 
have  felt  induced  to  give  it  here.  I  was  lately  in  the  island  of  Porto  Rico  when 
a  case  occurred,  which,  whatever  low  idea  we  may  entertain  of  Spanish  admin- 
istration of  justice,  still  remains  most  surprising.  An  American  and  the  chief 
partner  of  a  commercial  house  in  one  of  the  sea-ports  was  absent  on  a  journey, 
when  his  junior  partner  received,  by  way  of  pay,  several  packages  of  maccacuina 
money.  Without  counting  them,  or  examining  their  value,  he  passed  them  off 
again  in  the  regular  course  of  business  transactions.  This  is  done  every  day. 
At  that  time,  however,  a  large  importation  of  spurious  maccacuina  had  been 
made,  and  the  counterfeit  money  began  to  circulate.  It  was  strongly  suspected, 
and  perhaps  more  than  suspected,  that  persons  high  in  authority  had  shared  in 
this  foul  transaction,  and  they  were  now  desirous  of  fixing  the  guilt  on  some 
individual  or  other  who  had  not  participated  in  the  crime.  Be  this  as  it  may,  a 
witness  testified  under  oath  that  he  had  received  a  package  with  counterfeit  mac- 
cacuina from  the  junior  partner  of  the  house  mentioned  above.  He  declared 
that  he  had  passed  the  package  as  he  had  received  it,  which  is  done  eveiy  day, 
as  I  have  stated  already,  and  that  he  could  prove  that  he  had  done  so.  This 
declaration  was  of  no  avail.  It  was  said.  You  have  passed  the  counterfeit 
money,  no  matter  where  you  got  it  or  how  you  passed  it.  This  was  one  step  in 
the  affair.     The  next  was,  the  declaration,  or  assumption,  that  the  gentleman  in 


6o  ETHICS  IN  GENERAL. 

condign  punishment,  Carnot,  though  one  of  its  members,  was 
exempted. 

When  it  is  said,  a  state  or  nation  is  made  answerable  for 
some  wrong  done  to  another  nation,  the  term  is  not  used  in  a 
strictly  ethic  sense.  Wars  cannot  be  undertaken  for  the  sake 
of  punishment,  speaking  accurately;  because  wars  can  exist 
between  independent  states  only,  one  of  which,  therefore,  has 
no  right  to  punish  the  other,  which  would  presuppose  a  lawful 
power  over  it. 

Punishment  in  this  case  means  merely  a  resorting  to  that 
means  which  the  warring  nation  considers  as  the  most  suit- 
able to  prevent  a  recurrence  of  wrong  or  to  obtain  restitution. 
A  similar  sense  must  be  given  to  the  word  punishment,  when 
whole  provinces  or  any  entire  body  of  men  are  said  to  be 


question  had  done  so  as  junior  partner  of  the  house ;  the  third  step,  that  the  senior 
or  chief  partner  is  the  most  proper  representative  of  a  commercial  house;  and  the 
fourth  step  was,  that  the  latter  was  arrested,  on  his  return  from  a  journey,  for  the 
alleged  crime  of  his  house  having  passed,  and  therefore  probably  imported,  the 
counterfeit  money.  Nor  was  this  the  rash  act  of  some  ignorant  officer,  but  the 
gentleman  remained  a  considerable  lime  imprisoned,  and  was  not  finally  released 
on  the  ground  that  he  could  not  possibly  be  answerable  even  if  a  crime  had  been 
committed  by  his  junior  partner.  The  monstrosity  of  the  transaction  shocks 
every  one,  even  if  he  had  never  before  clearly  represented  to  his  mind  that  vir- 
tue or  crime,  in  short  everything  of  a  moral  character,  is  essentially  connected 
with  individuality.  No  wonder  that  Spain  and  all  former  Spanish  colonies  are 
suffering  from  endless  political  convulsions,  if  the  people  grow  up  with  such  utter 
confusion  of  the  most  elementaiy  notions. — Napoleon  made  the  parents  and  near 
relations  answerable  for  the  desertion  of  the  son  or  relative  from  the  amiy.  Bad 
as  this  measure  was,  it  was  never  pretended,  at  least,  that  the  responsibility  for  the 
act  of  desertion  could  possibly  be  separated  from  the  individual  who  ran  away; 
but  it  was  adopted  by  way  of  bare  expediency.  It  was  believed  it  would  induce 
the  soldier,  who  otherwise  might  have  no  interest  to  stay,  e.g.  when  he  was  from 
some  German  conquered  department  of  the  empire,  not  to  run  away;  the  parents 
or  relatives  were  held  as  hostages.  The  Chinese  code  continually  makes  the 
father  answerable  for  the  son's  crime,  and  in  many  cases  the  whole  family  is  pun- 
ished and  even  put  to  death  for  the  offence  of  one. — They  have  a  maxim  that  a 
married  woman  can  commit  no  crime;  the  responsibility  rests  with  her  husband: 
Davis,  u.  s.  ii.;  chapters  on  the  code,  i.  p.  282. — [Dr.  Lieber,  in  another  paper, 
remarks  that  none  but  individuals  can  be  responsible  for  penal  oftences,  and  cites 
Ch.  J.  Raymond  as  saying,  in  1 730,  that  while  a  warden  was  answerable  civilly 
for  the  acts  of  his  deputy,  he  was  not  criminally.] 


NO    CRIME   WITHOUT  INDIVIDUAL.  6 1 

punished,  for  instance,  by  the  imposition  of  a  fine,  or  the 
withdrawal  of  a  charter. 

That  in  such  cases  the  innocent  have  to  suffer  with  the 
guilty,  is  the  reason  why  nothing  but  absolute  necessity  should 
induce  men  to  resort  to  these  measures  ;  and  when  absolute 
necessity  of  doing  so  exists,  it  affords  only  one  more  proof 
that  man  is  imperfect,  a  being  who  cannot,  in  many  cases,  mete 
out  the  due  reward  to  the  guilty  without  affecting  at  the  same 
time  the  guiltless.  We  are  finite,  and  have  to  regulate  our 
actions  accordingly ;  while  the  consciousness  of  our  frailty, 
our  finiteness,  and  the  consequent  deficient  character  of  all 
human  justice,  will  lead  us  to  a  still  firmer  belief  in  a  perfect 
and  supreme  being,  whose  justice  is  perfect  and  absolute ; 
who  can  be  just  without  affecting  the  innocent.  If  we  con- 
template for  a  moment  the  essential  character  of  justice, 
founded  upon  man's  accountable  character,  and  this  again 
upon  his  individuality,  we  see  at  once  that  if  man  is  unable  to 
act  out  these  principles,  this  very  fact  is  one  more  proof  of  his 
imperfect  nature;  but  it  is  a  gross  mistake  to  use  that  which 
is  only  the  effect  and  proof  of  human  imperfection,  in  order 
to  explain,  by  way  of  analogy,  preconceived  and  erroneous 
notions  of  the  Deity.  I  cannot  pass  this  remark  without 
adding  that  analogy,  if  used  as  proof  and  not  simply  as  illus- 
tration of  what  has  already  been  proved,  in  matters  relating 
to  the  Deity,  is  presumptuous  and  necessarily  of  a  dangerous 
character,  since  it  induces  man  to  do  that  to  which  he  feels 
ever  too  much  inclined  in  his  limited  and  finite  sphere — to 
ascribe  to  the  Deity  his  own  finite  attributes.  Bishop  Butler, 
in  his  work  on  the  Analogy  of  Natural  and  Revealed  Re- 
ligion, appears  not  always  to  have  escaped  this  fallacy. 

The  individuality  upon  which  all  accountability  or  respon- 
sibility is  founded,  shows  at  once  the  crying  injustice  of  all 
punishments  which  extend  beyond  the  offender  farther  than 
their  mere  effect,  according  to  the  social  existence  of  man,  is 
unavoidable ;  for  instance,  by  way  of  affliction  of  respectable 
parents  at  their  son's  disgrace,  or  the  misery  of  a  wife  caused 
by  the  imprisonment  of  her  husband,  or  the  diminution  of  the 


62  ETHICS  IN  GENERAL. 

inheritance  of  children  by  a  fine  imposed  upon  their  father.  I 
mean  punishments  such  as  confiscation  of  all  property,  civil 
disgrace  of  whole  families,  attainder  of  blood. 

XXV.  All  ethic  attributes  of  man  are  inalienable.  He  can- 
not, even  were  he  desirous  of  doing  so — and  his  wickedness 
in  doing  so  would  be  equalled  only  by  the  absurdity  of  the 
desire — deprive  himself  of  his  moral  character.  Do  what  he 
may,  or  let  others  attempt  what  they  choose,  man  does  not 
and  cannot  become  a  non-moral  or  un-ethical  being.  He 
cannot  barter  away  his  reasoning  power  for  whatever  con- 
sideration ;  for  every  moment  that  he  adhered  to  such  a  com- 
pact, he  would  have  to  exercise  his  reason.  Nor  can  others 
possibly  deprive  him  of  it,  though  they  may  greatly  limit  its 
action;  he  cannot  alienate  his  free  will  and  decide  to  be  guided 
entirely  by  some  one  else.  He  must  decide  for  himself,  his 
conscience  tells  him  so  ;  nor  can  others  fetter  his  will,  which 
belongs  to  man's  rationality.  He  cannot  bargain  away  his 
conscience  and  responsibility,  because  he  shall  and  must  be 
responsible,  for  he  is  not  bound  in  his  will  and  real  action. 
He  cannot  submit  to  absolute  obedience  in  whatever  sphere 
this  may  be,  because  he  cannot,  if  he  choose,  get  rid  of  his 
ethic  attributes,  and  he  cannot  divest  himself  of  his  individu- 
ality, and  therefore  others  cannot  take  his  ethic  responsibility 
upon  themselves.  There  it  hangs  suspended  over  every 
single  soul,  "  Thou  art  a  human  being,  and,  therefore,  respon- 
sible, consequently  thou  must  reason  and  will ;  and  thou  hast 
reason  and  conscience,  and,  therefore,  art  responsible."  No 
power  on  earth  can  obliterate  this  fundamental  principle  from 
the  table  of  ethic  laws.  As  thou  eatest  and  drinkest  for  thy- 
self, so  thou  actest  for  thy  own  soul.  What  man  is  in  mind  and 
body,  first  of  all  he  is  as  an  individual.  Yet  he  was  not  made 
to  be  selfish,  and  his  Creator  connected  him  with  his  kind  by 
a  thousand  ties — by  sympathy,  love,  friendship,  and  by  the 
mysterious  attachment  growing  out  of  the  difference  of  sexes  J 
he  led  him  to  the  foundation  of  the  family,  which  became  the 
first  starting-point   of  moral  cultivation,  and  the  hearth  on 


ETHICAL  EXPERIENCE.  63 

which  the  flame  of  a  thousand  things  that  are  sacred  and 
noble  burns  with  its  holy  fire. 

It  is  this  difference,  that  every  human  being  has  a  moral 
character  of  his  own,  and  that  consequently,  as  we  have  seen 
above,  we  ought  in  no  instance  to  make  another  human  being 
merely  the  tool  of  our  ends  and  objects;  and  that  the  animal 
is  a  non-moral  being,  a  thing — from  which  we  derive  our 
justification  of  killing  animals  for  food,  or,  still  more,  of  sub- 
mitting them  to  great  pains  and  suffering  for  the  sake  of 
science,  the  right  to  which  will  not  be  denied,  though  we  all 
feel  that  it  ought  to  be  resorted  to  with  the  utmost  care,  not 
forgetting  the  painful  feelings  of  the  great  physiologist  Hal- 
ler,  in  the  evening  of  his  life,  at  all  the  suffering  he  had  in- 
flicted on  animals.  Not  a  slave,  nor  even  a  criminal,  becomes 
a  non-moral  being,  and  it  is  immoral  to  experiment  upon 
criminals,  should  they  be  subjected  thereby  to  sufferings.^  I 
know  of  an  instance  where  the  surgeons  of  a  regiment  dis- 
agreed on  some  point  of  anatomy,  and  an  officer  promised  to 
provide  them  with  a  subject,  by  ordering  his  soldiers  to  shoot 
one  of  the  enemy's  outposts.  The  officer  did  not  do  so,  yet 
he  was  officially  censured  even  for  his  promise. 

XXVI.  Though,  however,  it  is  engraven  in  every  heart 
that  we  ought  to  do  right  and  not  do  wrong,  and  though  the 
simplest  intellect  will  be  ready  to  acknowledge  our  obliga- 
tion to  obey  the  fundamental  moral  law,  as  given  above,  yet 
its  application  to  the  endless  variety  of  cases  which  offer 
themselves  through  life  requires  experience  in  a  twofold 
way.  It  is  often  easy  to  find  the  abstract  truth,  but  difficult 
indeed  to  apply  truth  ever  the  same  to  ever-changing  reality. 
Experience  is  required  : 

I.  Because  in  many  cases  doing  right  means  nothing  more 


I  *  "  The  servant,  nay,  even  the  slave,  is  not  bound  to  obey,  and  moreover  is 
not  excusable  for  obeying,  the  unlawful  commands  of  his  master."  Letter  of  B. 
W.  Leigh,  then  Senator  of  the  U.  S.  from  Virginia  to  the  General  Assembly  of 
Virginia,  March  2,  1836. 


64  ETHICS  IN  GENERAL. 

than  selecting  that  which  experience  has  shown  to  be  the 
best.  If  we  find  that  a  certain  action,  measure,  or  step,  though 
in  itself  entirely  indifferent,  has  invariably  or  generally  pro- 
duced evil  consequences,  we  act  immorally  if  we  disregard 
the  result  of  experience,  and  we  act  likewise  immorally  if  we 
neglect  making  ourselves  acquainted,  to  the  best  of  our 
powers,  with  this  result  of  experience.  As  all  politics  are  in 
a  great  measure  dependent  upon  experience,  and  consist 
both  of  the  abstraction  of  general  ideas  from  numerous  indi- 
vidual cases,  and  the  application  of  abstract  ideas  to  ever- 
changing  cases  of  practical  life,  it  is  clear  that  judicious 
application  of  well-understood  and  honestly  consulted  experi- 
ence forms  a  most  important  part  in  all  ethical  relations 
applied  to  politics.  Some  acts  are  strictly  moral  or  immoral, 
others  belong  to  the  sphere  of  wisdom  and  foresight  [aoifia  and 
thXd[izi(i).'  The  line  between  the  two,  in  many  cases,  can 
hardly  be  strictly  drawn,  or,  if  it  could,  it  would  be  of  no  use, 
as  the  one  is  as  important  as  the  other.' 

2,  Experience  is  requisite  with  regard  to  the  habit,  practice, 
skill,  exercise,  and  application  which  we  have  to  acquire  in 
applying  the  science  of  morals.  It  is  in  ethics  as  in  the  science 
of  medicine :  the  science  gives  to  the  physician  the  general 
rules  ;  but  how  to  combine  them,  and  that  with  rapidity,  for  a 
given  case,  which  consists  of  a  number  of  simple  cases,  singly 
treated  of  by  the  science,  and  each  modified  by  the  other, 
practice  alone  can  teach.  Wherever  a  science  is  to  be  applied, 
the  art  is  requisite  in  addition  to  the  science  ;  and  who  is  there 
that  has  lived  sufficiently  long  to  gather  experience  and  does 
not  acknowledge  that  an  ethical  skill,  or  art,  is  requisite  in 
life  ?  Who  would  deny  that  moral  practice  is  indispensable 
for  the  numberless  cases  of  duties  conflicting  with  each  other? 
The  art  of  fencing  teaches  us  the  exact  position  of  the  hand, 
the  single  and  well-defined  thrusts,  and  how  to  direct  them  to 
one  small  particular  spot.     No  one  who  does  not  learn  these 

»  "  Be  ye  therefore  wise  as  serpents,  and  harmless  as  doves."     (Matt.  x.  l6.) 
Life  is  short,  but  art  is  long.     Hippocrates. 


VARIOUS  ETHICS. 


65 


elements  of  the  arts  well  can  ever  hope  to  become  a  skilful 
swordsman ;  yet  the  art  cannot  teach  all  possible  combina- 
tions, or  substitute  any  rule  for  the  quick  discernment  and 
rapid  judgment  which,  in  the  twinkling  of  an  eye,  knows  how, 
almost  instinctively,  to  apply  the  elementary  rules  which  have 
become  like  a  second  nature  to  the  hand,  or  finds  with 
rapidity  resources  in  the  powers  of  combination  well  trained 
for  this  particular  art.  So  can  no  system  of  morals  dictate 
what  is  to  be  done  in  each  case.  No  one  will  expect  that  a 
book  can  or  ought  to  do  that  for  which,  indeed,  we  are  placed 
in  this  world, — the  acting  as  moral  beings. 

Knowledge  of  morals  alone,  without  practical  skill,  will 
lead  to  moral  pedantry,  an  adherence  to  single  truths  at  the 
expense  of  others — an  error  the  more  to  be  shunned,  as  those 
who  commit  it,  and  suffer  in  consequence  of  it,  are  apt  to 
consider  themselves  as  martyrs  of  morality  or  truth.  This 
is  especially  the  case  in  politics,  in  which  it  is  so  easy  to  single 
out  one  truth,  one  maxim,  one  principle,  and  to  follow  it  up 
unconcerned  about  other  equally  important  ones.  It  is  gen- 
erally the  choice  of  weaker  and  less  comprehensive  minds, 
and  may  lead  them  to  a  variety  of  injurious  acts  and  crimes, 
though  under  plausible  forms.  History  is  full  of  these  exam- 
ples. Generally  the  most  essential  points  which  opposed 
parties  claim  are  true  enough  in  themselves.  But  it  is  not 
sufficient  that  we  acknowledge  a  truth  ;  we  have  conscien- 
tiously to  endeavor  to  know  the  truth.  Skill,  without  a 
knowledge  of  morals,  degenerates  into  mere  expediency,  an 
equally  great  and  dangerous  defect  in  morals. 

XXVII.  Having  acknowledged  the  first  principle  in  ethics, 
that  man  has  an  inalienably  moral  character  and  cannot  by 
his  own  consent  or  the  force  of  others  become  a  non-moral 
being,  various  systems  of  ethics  maybe  established.  Not  that 
what  is  once  proved  to  be  immoral  by  one  system  can  be 
shown  to  be  moral  by  another,  but  we  may  build  up  different 
systems  according  to  the  different  ways  which  we  may  pursue 
in  arriving  at  settled  ideas  and  defined  notions  with  regard  to 

5 


^^  ETHICS  IN  GENERAL. 

morals,  or  according  to  the  main  subjects  to  which  we  apply 
ethics. 

We  have  already  seen,  from  the  etymology  of  the  word 
ethics,  what  way  the  Greek  nation  has  pursued  in  arriving  at 
clearer  ideas  in  ethics,  and  finally  combining  them  into  one 
system.  Common  sense,  common  justice,  common  interest, 
soon  leads  men  to  certain  customs,  to  observe  certain  rules, 
without  which  intercourse  and  mutual  understanding  would 
be  impossible.  These  customs  in  real  life  formed  a  subject 
for  reflecting  minds,  to  find  out  that  which  is  stable  in  them, 
and  why  it  is  stable,  as  contradistinguished  from  what  is  vari- 
able, accidental,  unessential.  "From  ancient  times,  men  have 
found  out  what  is  good  and  right ;  from  which  we  ought  to 
learn.  And  one  of  these  things  is,  that  every  one  consider 
well  what  properly  belongs  to  him."  (Herodotus,  i.  8.)  This 
has  been  the  course  with  all  nations.  Common  sense  neces- 
sarily precedes  the  science.  See  a  very  true  passage  on  the 
meaning  of  words  which  common  sense  gives  them,  and  which 
science  at  a  later  period  strives  to  ascertain  and  express,  in  Mr. 
Guizot's  General  History  of  European  Civilization,  Lecture  I. 

As  ethics  first  thus  gather  what  by  common  sense  has  been 
established  among  men,  so  may  ethical  systems  be  raised  upon 
the  moral  precepts  deposited  in  some  other  way,  for  instance 
in  religious  or  civil  codes.  Thus,  we  have  Christian  ethics, 
i.e.  a  system  of  morals  founded  upon  the  moral  precepts  con- 
tained in  the  Bible  ;  we  have  even  evangelical  Christian  ethics, 
which  means  a  system  of  morals  founded  upon  the  Bible 
when  this  code  is  taken  and  understood  in  the  way  peculiar 
to  Protestants.'  In  a  similar  manner  we  have  to  understand 
the  expressions  Mahometan,  Homeric,  Hindoo  ethics. 

Ethics  are  general ;  but  by  applying  them  to  some  promi- 
nent situations  or  important  characteristics  of  man,  e.g.  his 
social  character,  we  obtain  special  branches  or  systems  of 
ethics. 


»  For  instance,  a  work  by  Professor  Schwarz,  at  Heidelberg,  entitled  Ethics 
of  Evangelic  Christianity. 


CHAPTER    IV. 

Man,  a  Being  having  his  own  End  and  Purpose,  or  an  Ens  aiitoteles. — Natural 
Law. — Its  only  Axiom. — Its  Object. — Difference  of  Natural  Law  and  Ethics. 
— Science  of  Politics. — Disastrous  Consequences  of  confounding  Natural  Law 
and  Politics  proper. — Good  Faith  necessary  wherever  Man  acts. — Political 
Ethics. — Its  relation  to  the  other  Sciences  which  treat  of  Man. 

XXVIII.  We  have  seen  that  every  man,  as  man,  has  his 
own  ethic  worth  and  value;  he  is  in  this  respect  not  only  his 
own  object,  but  in  consequence  of  his  reason  and  free  will  he 
can  and  ought  to  make  himself  the  conscious  object  of  his 
own  activity ;  in  other  words,  he  shall  consciously  work  out 
his  own  perfection  ;  that  is,  the  development  of  his  own 
humanity.  For  this  reason  man  has  been  called  by  the  old 
philosophers  ens  aiitoteles  [ens,  being,  aiitoteles  from  ayrd?,  self, 
and  riXoq,  end),  a  being  that  is  consciously  its  own  end  and 
object,  to  distinguish  him  from  other  animals.  This,  as  is 
evident,  is  again  indispensably  connected  with  man's  indi- 
viduality. Ethics  having  established  these  points,  it  is  the 
object  of  another  science,  natural  law,  or,  as  others  have  called 
it  of  late,  e.g.  Mr.  Rotteck  of  Freiburg,  rational  law,  to  show 
the  rights  which  man  has  according  to  his  inherent,  inalien- 
able ethical  nature. 

XXIX.  Every  science,  even  mathematics,  has  to  start  from 
some  axioms,  that  is,  from  truths  which  must  be  either  sup- 
posed to  have  been  proved  by  other  sciences,  or  are  self- 
evident  in  their  nature.  The  very  meaning  of  proof  involves 
its  starting  from  and  relying  on  previously  acknowledged 
truths.  For  every  syllogism  we  want  first  two  terms,  to  make 
our  conclusion  ;  the  axiom  therefore  is  a  truth  the  convincing 
and  binding  power  of  which  we  cannot  help  acknowledging 
without  the  logical  process  of  deriving  the  conclusion  from 
the  term  and  middle  term. 

67 


68  POLITICAL  ETHICS. 

It  appears  to  me  that  the  only  axiom  necessary  to  estab- 
lish the  science  of  natural  law  is  this  :  "  I  exist  as  a  human 
being,  tJicrcfo7-e  I  have  a  right  to  exist  as  a  human  being."' 
This  once  acknowledged,  the  rights  of  men  in  their  various 
relations  as  individuals,  husbands  or  wives,  fathers  or  mothers, 
as  citizens  individually  and  collectively  in  the  state  to  other 
independent  states  and  to  the  collective  citizens  within  the 
state,  may  consistently  and  justly  be  established.  Though 
some  ancient  and  modern  writers  have  maintained  that  no 
right  exists  antecedent  to  the  magistracy,  deriving  the  right 
of  this  from  some  extra-political,  and  in  some  cases  even  from 
some  extra-human,  source,  it  is  nevertheless  true  that,  if  we 
do  not  deny  our  own  existence  and  the  existence  of  truth,  the 
reality  and  truth  of  natural  law  can  be  scientifically  and  irre- 
sistibly established  with  as  much  certainty  as  that  of  other 
sciences.  Spinoza  (Epist.  74),  who,  it  will  be  admitted  on 
all  hands,  might  be  charged  with  anything  rather  than  too 
great  a  readiness  to  admit  unwarranted  truths,  justly  remarks, 
"  Quomodo  autem  id  sciam  si  roges,  respondebo,.  eodem 
modo  ac  tu  scis  tres  angulos  trianguli  aequales  esse  duobus 
rectis,  et  hoc  sufficere  negabit  nemo  cui  sanum  est  cerebrum 
nee  spiritus  immundos  somniat,  qui  nobis  ideas  falsas  inspirant, 
veris  similes." 

Natural  Law,  then,  inquires  into  the  rights  of  man  to  be 
derived  from  his  nature,  both  physical  and  moral,  for  the  latter 
is  closely  connected  with  the  former;  it  inquires  into  qtiid sit 
jiistiim  ant  injustmn,  not  into  quid  sit  juris  (what  is  law  or  law- 
ful). The  word  nature  is  a  term  used  in  so  many  various  signi- 
fications that  it  has  led  to  great  confusion  of  ideas  in  several 
branches  ;  and  it  is  not  an  uncommon  mistake  to  believe  that 
natural  law  is  that  law  which  existed  in  the  erroneously  sup- 
posed state  of  nature,  on  which,  as  has  been  indicated  already, 
I  shall  have  to  dwell  in  the  next  book.  The  law  of  nature,  or 
natural  law,  on  the  contrary,  is  the  law,  the  body  of  rights, 


'  [It  being,  of  course,  understood  what  a  human  being  is  in  all  his  relations, 
and  what  ought  to  take  place  when  those  relations  are  disturbed.] 


NATURAL  LAW. 


69 


which  we  deduce  from  the  essential  nature  of  man.  It  is, 
therefore,  equally  erroneous  to  contradistinguish  or  oppose 
natural  law  to  revealed  law,  for  the  latter  can  only  be  founded 
upon  the  former,  since  by  the  nature  of  man  we  understand 
that  imprint  and  essential  mode  of  existence  which  he  re- 
ceived from  the  hands  of  his  Creator.     They  cannot  conflict. 

Nor  are  natural  law  and  moral  law  or  ethics  the  same.  The 
difference  is  material.  Ethics  treats,  among  other  subjects, 
of  the  duties  of  man,  and  secondarily  of  his  rights  derivable 
from  his  duties ;  natural  law,  on  the  other  hand,  treats,  as  the 
fundamental  and  primary  subject,  of  man's  rights,  and  second- 
arily'of  his  obligations  flowing  from  the  fact  of  each  man's 
being  possessed  of  the  same  rights.  This  distinction,  though 
essential,  has  been  and  to  this  day  is  frequently  overlooked. 
An  equally  good  name  with  that  of  natural  law  might  be 
abstract  law  or  pure  law,  as  we  have  pure  mathematics. 

XXX,  Natural  Law  having  ascertained  and  established 
that  which  is  right  from  the  nature  of  man,  it  is  the  subject 
of  another  science  to  ascertain  the  best  means  of  securing  it, 
both  according  to  the  result  and  conclusion  of  experience, 
and  the  demands  of  existing  circumstances.  I  would  call 
this  branch  politics  proper.  An  instance  or  two  will  illustrate 
the  subject.  If  natural  law  shows  from  the  fact  of  every  man's 
being  a  moral  being,  who  has  his  own  end  and  worth,  and 
from  the  consequent  impossibility  of  his  becoming  a  non- 
moral  being  under  whatsoever  circumstances,  or  of  losing  his 
individuality,  that  the  state  must  offer  protection  to  every 
one,  or  must  cease  to  be  a  state  so  far  as  he  is  concerned  who 
is  denied  to  have  a  right  to  derive  any  advantage  from  it;  or 
if  it  shows  that  all  men  are  equal  in  this  respect,  that  each 
one  has  his  own  ethic  worth,  and  that  this  equality  forms  the 
only  true  foundation  for  justice;  it  would,  on  the  other  hand, 
be  a  question  of  politics  proper  to  ascertain  how  the  many 
ends  of  true  justice  are  to  be  obtained.  If  natural  law  estab- 
lishes the  general  right  to  property,  namely,  that  it  is  founded 
in  the  unalterable  and  indispensable  nature  of  man  that  exclu- 


70 


POLITICAL  ETHICS. 


sive  possession  of  things  belonging  to  the  material  world 
should  be  vested  in  individuals  or  individual  societies  ;  it  is 
for  politics  proper  to  ascertain  whether,  under  certain  given 
circumstances,  this  general  right  of  property  is  best  secured 
by  representative  governments,  by  the  trial  by  jury,  by  un- 
limited possession,  or  by  revertible  titles,  as  was  the  case  in 
the  Mosaic  law;  whether  the  general  principle  demands,  under 
the  given  circumstances,  that  the  accumulation  of  property  as 
well  as  its  division  should  be  unlimited,  or  whether  it  is  wise 
to  prevent  division  below  a  certain  standard,  as  is  the  case  in 
Sweden  and  some  other  countries,  or  prevent  accumulation 
beyond  a  certain  limit,  as  Solon  prescribed.  The  whole  great 
question  of  constitutions,  with  respect  to  everything  that  is 
not  strictly  a  principle  of  natural  law,  e.g.  protection  of  per- 
sonal liberty,  of  freedom  from  molestation  as  long  as  no  wrong 
is  done,  of  a  degree  of  protection  extended  even  to  the  evil- 
doer and  while  we  bring  him  to  punishment,  belongs  to  the 
present  branch.  Shall  we  have  two  chambers,  or  one,  or 
three  separate  estates,  or  four?  How  long  shall  the  member- 
ship of  the  upper  house  continue  ?  for  six  years,  as  in  the 
United  States,  for  ten,  or  for  life,  as  has  been  the  case  in 
France  ?  Who  shall  bestow  it  ?  Once  bestowed,  shall  it  be 
hereditary,  as  in  England,  or  shall  the  house  consist  of  some 
hereditary  peers  and  others  holding  the  place  for  life,  as  in 
Holland,  Bavaria?  Shall  prelates  belong  to  it?  Does  not 
the  crown  increase  its  influence  if  it  has  the  right  to  make 
peers  for  life  only,  because  the  opportunity  of  conferring  the 
peerage  returns  more  frequently,  and  the  whole  body  feels 
more  dependent  upon  the  crown  ?  Does  the  increased  inde- 
pendence of  a  hereditary  peerage  upon  the  crown  promise  on 
the  whole  more  advantage  to  the  people  by  uniting  with  them 
against  encroachments  of  the  crown,  or  disadvantage  by  con- 
tinued opposition  to  cherished  measures  of  the  people  ?  Is  it 
advisable  to  have  female  monarchs,  where  monarchy  is  neces- 
sary ?  Are  they  or  are  they  not  in  their  nature,  as  belonging 
to  the  weaker  sex  which  is  universally  excluded  from  public 
business,  peculiarly  jealous  of  their  rights,  suspicious  of  oppo- 


NATURAL  LAW.  7 1 

sition,  and  high-toned  in  holding  on  to  their  prerogatives ; 
and,  if  so,  are  the  advantages  to  be  derived  from  an  order  of 
succession  which  includes  females  greater  than  the  disadvan- 
tages ?  Which  mode  of*  voting  promises  the  greatest  advan- 
tage, that  by  ballot  or  by  open  votes  ?  By  which  mode  is, 
after  all,  greater  independence  and  a  less  degree  of  intrigue  ob- 
tained ?  Is  an  election  of  electors  best,  or  a  direct  election  ? 
Shall  judges  be  appointed  for  good  behavior,  or  for  a  limited 
time  ?  What  shall  form  the  basis  of  representation,  property, 
number,  education,  or  a  combination  of  them  ?  When  shall 
a  man  be  of  age  ?  Is  it  good  that  the  executive  be  dependent 
upon  the  people  for  supplies  ?  Ought  the  crown  to  have  a 
distinct  crown  treasure  ?  On  which  side  are  the  greatest  ad- 
vantages, where  the  executive  ministers  are  members  of  one 
of  the  houses,  and  if  so,  where  they  have  a  vote  or  not,  or 
where  they  are  excluded,  as  in  the  United  States  ?  How  is 
the  appointing  power  of  the  executive  to  be  limited  ?  How, 
altogether,  is  the  great  problem  of  giving  sufficient  and  yet 
not  too  much  power  to  the  executive,  to  be  solved?  All 
these  questions  cannot  be  solved  on  absolute  grounds ;  it  is 
experience  alone,  soundly  viewed  and  impartially  applied  to 
existing  circumstances  as  well  as  the  principles  ascertained 
by  natural  law  which  can  guide  us  respecting  these  subjects, 
many  of  which  are,  nevertheless,  of  vital  interest. 

The  confusion  of  natural  law  and  politics  proper  has  pro- 
duced evil,  and  not  unfrequently  disastrous  consequences.  On 
the  one  hand,  men  have  seen  that,  without  establishing  firm 
and  absolute  principles,  all  would  be  confusion  and  insecurity. 
On  the  other  hand,  they  have  been  so  far  misled  by  principles 
drawn  from  natural  law,  as  to  judge  every  political  question 
by  theory  alone,  disavowing  experience,  expediency,  and  a 
due  regard  to  the  elements  which  were  given  wherewith  to 
work.  The  impossibility  of  proceeding  in  this  way  never 
fails  soon  to  be  felt,  and  the  very  disowners  of  expediency  or 
the  necessity  of  making  measures  practical  have  committed 
the  most  tyrannical  outrages,  not  unfrequently  founded  alone, 
and  acknowledgedly  so,  on  absolute  expediency  as  preparatory 


72 


POLITICAL  ETHICS. 


for  that  perfect  state  to  be  founded  upon  absolute  theory. 
Such  men  we  find  in  the  Jacobins  in  France,  whose  ab- 
solute theory  was  what  they  called  philosophy;  and  in  the 
early  Scottish  Presbyterians,  whose  absolute  theory  was  their 
notion  of  divine  government.'  Again,  men  felt  that  the 
abstract  principles  of  natural  law  were  insufficient  to  guide 
them  in  many  practical  cases,  and  they  fell  into  the  error  of 
rejecting  it  altogether,  relying  only  on  power  as  the  founda- 
tion of  all  right,  on  mere  expediency  as  the  sole  guide  of 
political  action. 

Analogous  to  the  term  abstract  law  for  natural  law,  we 
might  call  this  branch  applied  law,  which  would  include  both 
political,  civil  and  penal  law,  in  as  far  as  it  remains  general. 
The  existing  law  is  called  positive. 

XXXI.  Wherever  the  application  of  a  principle  or  rule  is 
required,  whenever  an  abstract  principle  passes  over  into 
practical  life,  conscientious  action  is  required,  or  it  will  fail  to 
obtain  its  object.  No  prescription  or  form  of  words,  no  law 
or  institution,  can  serve  as  a  substitute  for  this  essential  ele- 
ment of  human  action.  It  is  therefore  necessary  to  ascertain 
by  what  moral  principles  we  ought  to  be  guided  in  certain 
specific  political  cases,  and  what  it  is  that  experience  points 
out  as  the  wisest  course  for  a  conscientious  citizen,  under  the 
law  and  in  relations  established  by  the  two  former  sciences. 
And  this  branch  in  particular  I  call  political  ethics. 

If,  for  instance,  politics  proper  establishes  that,  for  certain 
purposes  and  under  certain  circumstances,  it  is  necessary  that 
the  votes  of  the  members  of  a  state  ought  to  be  taken,  but 
that  the  law  ought  to  leave  it  to  the  option  of  each  citizen 
whether  he  will  vote  or  not,  it  belongs  to  the  province  of 
political  ethics  to  ascertain  whether  every  citizen  is  morally 
bound  to  vote  under  all  circumstances,  and,  if  not,  to  point 
out  the  cases  when  he  ought  to  vote,  not  according  to  the 


«  See  Brodie's  excellent  History  of  the  British  Empire,  eg.  in  vol.  i.  the  dis- 
cussions between  James  I.  and  the  Scottish  Presbytery. 


POLITICAL  ETHICS. 


73 


law,  but  in  conformity  with  his  moral  obligations  as  a  good 
citizen ;  when  he  need  not,  and,  finally,  when  he  ought  not  to 
vote. 

If  the  former  branch  establish  that  general  rules  of  action 
or  laws  must  be  established  wherever  a  society  exists,  and 
that  these  laws  ought,  of  course,  to  be  obeyed,  for  without  it 
they  would  not  be  general  rules  ;  and  if,  at  the  same  time, 
that  branch  has  to  define  the  subjects  on  which  society  may 
or  ought  to  legislate,  and  those  on  which  no  general  rule 
ought  to  be  given ;  it  belongs  to  the  department  of  the  branch 
with  which  we  shall  occupy  ourselves,  to  ascertain  the  cases 
when,  or  law^s  which  we  may  disobey  and  those  we  are 
morally  bound  to  disobey.  If  we  find  that  in  free  countries 
an  opposition  to  the  administration  is  not  only  advisable,  but 
highly  desirable,  political  ethics  must  show  how  far  a  con- 
scientious citizen  may  go  in  his  opposition. 

That  in  many  cases  it  will  be  difficult  to  ascertain  with  pre- 
cision to  which  of  the  two  branches  a  subject  belongs,  is  clear; 
as  there  is  no  absolute  line  of  demarcation  for  any  science, 
except  that  of  mathematics,  which  circumstance  gives  so 
great  advantages  to  the  science,  and  again  confines  it  within 
so  narrow  limits.  Nor  has  this  uncertainty  any  injurious 
effect;  for  if  the  subject  be  but  fully,  philosophically,  and 
conscientiously  treated,  it  does  not  matter  so  much  where  it 
is  done. 

What  has  been  said  of  the  necessary  combination  of  pru- 
dence with  what  is  strictly  ethical  on  its  own  ground,  in 
general  ethics,  finds  most  ample  application  in  this  particular 
branch  of  applied  ethics ;  in  no  branch  of  morals,  indeed,  so 
much  so  as  in  this.  With  Themistocles,  every  citizen  ought 
to  advise  on  what  is  prudent;  with  Aristides,  on  what  is  just 
and  good. 

XXXII.  Political  ethics  would  apply  to  municipal  political 
relations  as  well  as  to  international  relations.  But  inter- 
national law,  as  Mr.  Bentham  has  more  significantly  called 
what  before  him  was  styled  the  law  of  nations,  forms  so  dis- 


74 


POLITICAL  ETHICS. 


tinct  a  branch  of  natural  or  positive  law,  according  to  the 
point  of  view  which  may  be  taken,  that  I  hope  the  critic  will 
excuse  me  if,  at  least  for  the  present  work,  especially  calcu- 
lated for  less  mature  readers,  I  drop  the  subject  of  ethics  as 
applied  to  international  intercourse,  and  occupy  myself  solely 
with  ethics  as  applied  to  municipal  political  relations.  Yet  I 
would  guard  myself  against  a  suspicion  that  I  undervalue  the 
moral  element  in  the  intercourse  between  independent  states. 
No  one  can  have  studied  history  without  coming  to  the  con- 
clusion that  morality  is  of  urgent  expediency  in  the  inter- 
course of  nations,  even  were  we  not  bound  on  higher  grounds 
to  acknowledge  our  ethical  obligations,  which  never  leave  us, 
even  in  these  international  relations.  The  few  truly  mag- 
nanimous international  acts  which  history  records  have,  I 
believe,  failed  in  no  instance  to  produce  the  most  beneficial  re- 
sults, while  the  age  of  diplomatic  cheat  and  trickery  brought 
misery  over  all  Europe.  What  had  Louis  XIV.  gained, 
towards  the  end  of  his  days,  by  an  unusually  long  and  active  > 
life  of  political  fraud,  faithlessness,  and  immorality,  which 
totally  disregarded  justice  or  the  sacredness  of  engagements  ? 

XXXIII.  If  we  wish  to  assign  the  proper  rank  to  what  I 
mean  by  political  ethics,  among  all  the  sciences  whose  sub- 
ject is  man,  it  would  be  this :  man  can  be  considered  as  he 
is,  or  ought  to  be,  and  as  he  has  been  ;  again,  individually 
or  socially  ;  again,  physically,  morally,  or  intellectually.  In- 
dividually, physically  as  he  is,  man  forms  the  subject  of 
anatomy,  comparative  anatomy,  physiology,  etc.,  or  medicine. 
Socially,  physically  and  as  he  is,  by  political  economy.  Indi- 
vidually, morally,  as  he  is,  and  ought  to  be,  by  ethics,  the 
science  of  education,  etc.  Individually,  intellectually  as  he 
is,  by  the  philosophy  of  the  mind,  or,  according  to  English 
terminology,  by  metaphysics.  Socially,  according  to  the 
relations  of  right,  as  it  ought  to  be,  by  natural  law,  politics 
proper,  etc. ;  as  it  is,  by  diplomacy,  positive  law,  etc.  Socially 
and  morally,  by  political  ethics.  Socially  and  intellectually, 
by  the  science  of  national  education,  or,  in  general,  national 


POLITICAL    ETHICS.  75 

civilization.  The  two  relationi-  of  time  as  it  is  and  as  it  has 
been,  together  with  the  ethic  re  lation,  as  it  ought  to  be,  give, 
applied  to  law  for  instance,  the  positive  or  existing  law  and 
the  history  of  law ;  natural  law  and  theoretic  politics. 

All  ricfht,  as  we  have  seen,  starts  from  the  moral  character 
of  man,  and  ethics,  again,  applied  to  man's  pohtical  relations, 
has  to  shed  light  upon  the  many  relations  within  the  con- 
fines of  the  law,  upon  those  actions  which  the  law  leaves 
wisely  to  the  judgment  of  the  citizen,  and  which  yet  are  of 
great  importance  to  the  whole  well-being  of  the  common- 
wealth. I  repeat,  it  is  this  branch  of  applied  ethics  which  I 
call  political  ethics. 


CHAPTER    V. 

Does  Political  Ethics  deserve  to  be  treated  separately? — Can  Ethics  be  applied  to 
Politics? — The  People  at  large  ought  to  know  their  Political  Duties. — Political 
Ethics  is  not  for  the  Statesman  alone. — Demoralizing  Effect  of  a  Politically- 
Debased  Society  upon  the  Individual. — Political  Ethics  especially  important 
in  Free  Countries. — Attempts  of  Governments  and  Nations  to  justify  Public 
Crimes,  which  proves  that  Men  agree  that  public  Acts  ought  to  be  founded  on 
Ethic  Grounds. — Ethics  cannot  be  applied  to  Politics  precisely  as  to  Private 
Relations. — Mere  Expediency ;  mere  Theory. 

XXXIV.  If  it  has  thus  been  shown  what  place  in  the  chain 
of  sciences  political  ethics  occupies,  and  what  forms  the  subject- 
matter  of  this  division  of  ethics,  it  remains  for  us  to  answer 
two  questions : 

1.  Though  they  may  be  important,  are  they  sufficiently  so 
to  be  treated  separately  ?  for  in  a  similar  way  we  might  sepa- 
rately discuss  family  ethics,  or  forensic  ethics,  meaning  by  the 
latter  a  system  of  duties  concerning  the  citizen  in  a  forensic 
character,  as  judge,  juryman,  lawyer,  even  as  witness,  informer, 
or  prosecutor. 

2.  Is  politics  really  a  subject  to  which  ethics  can  be  ap- 
plied ?  For  it  cannot  be  denied  that  the  actions  of  many 
persons  indicate  that,  according  to  their  opinion,  little  con- 
nection exists  between  the  one  and  the  other,  or  that,  accord- 
ing to  their  desire,  little  ought  to  exist. 

XXXV.  As  to  the  first,  whether  political  ethics  forms  a 
branch  of  sufficient  importance  to  be  treated  separately,  we 
must  refer  to  the  next  book,  by  which  it  will  be  seen  that 
man,  or  at  any  rate  the  least  elevated  races  of  his  species,  can- 
not exist  without  the  institution  called  the  state,  because  he  is 
essentially  a  social  being,  according  to  his  animal  propensities 
and  organization  as  well  as  his  intellectual  faculties  and  moral 
characteristics.     Yet  a  man  may  be  a  dutiful  son,  a  loving 

76 


ITS  GENERAL  IMPORTANCE.  yy 

brother,  a  kind  husband,  a  judicious  father,  a  faithful  friend,  a 
charitable  neighbor,  industrious  in  his  calling,  a  sincere  well- 
wisher  to  his  species,  and  still  he  may  omit  a  strict  perform- 
ance of  his  duties  as  a  citizen.  He  may  even  boast  of  his 
political  apathy.  So  that  it  appears  necessary  that  we  should 
know  all  our  civil  obligations.  Whenever  nations  have  risen 
to  a  high  degree  of  civilization,  they  have  reflected  on  the  art 
of  government,  the  principles  of  legislation,  and  the  origin  and 
object  of  the  state ;  wherever  man  has  omitted  to  do  so,  he 
has  relapsed  into  barbarity,  or  never  elevated  himself  above 
it.  Man  cannot  be  what  he  ought  to  be,  without  the  state, 
and  nations  rise  by  wise  laws ;  never  do  they  maintain  them- 
selves, after  having  risen  in  an  elevated  position,  except  by 
good  laws  and  sound  institutions  supported  and  carried  out 
by  active  patriotism.  Europe  on  the  one  side,  Asia  on  the 
other,  form  the  mighty  commentaries  which  history  has  writ- 
ten and  continues  to  take  down  upon  these  truths.  There 
is  no  nobler  sight  to  contemplate,  no  object  more  invigor- 
ating to  dwell  upon,  than  a  man  of  manly  energy  and  wisdom 
welded  and  wedded  in  vivid  patriotism  to  his  country,  living 
and  laboring  faithfully,  in  glory  or  difficulty,  honored  or  mis- 
judged, wisely,  firmly,  steadily,  and  devotedly,  for  his  people. 
No  one  contemplates  a  Turgot,  De  Witte,  Sir  John  Eliot, 
Washington,  Epaminondas,  Chatham,  without  feeling  the 
better,  the  more  reassured  for  it. 

XXXVI.  Many  subjects,  however,  though  useful  or  neces- 
sary to  some,  are  not  so  to  every  one.  Political  ethics  may  form 
a  very  proper  branch  for  a  leading  statesman,  or  the  citizen 
who  makes  a  profession  of  politics,  yet  ought  it  to  be  well 
understood  by  everybody?  Is  it,  in  particular,  necessary  to 
instruct  the  young  in  it?  I  believe  it  is  most  emphatically 
so.  It  is  every  man's  business  to  know  his  duty,  and  his 
duties  as  citizen  are  among  the  most  sacred  and  important, 
especially  so  in  countries  which  enjoy  civil  liberty  and  have 
what  is  commonly,  though  inaptly,  called  a  free  government. 
The  success  of  the  whole  depends  upon  the  whole ;   and 


78  POLITICAL  ETHICS. 

there  is  no  subject  connected  with  the  state  which  does  not 
vitally  affect  the  interests  of  every  one.  Laws  and  institutions 
are  nothing  more  than  dead  forms  of  words,  unless  they  operate. 
Constitutions  do  not  create  liberty ;  political  welfare  cannot  be 
decreed  or  effected  by  an  edict  or  statute.  Liberty  must  grow 
and  live,  live  in  the  heart  of  every  one,  not  only  as  an  ardent 
desire  or  an  indefinite  though  exciting  notion,  but  as  a  knowl- 
edge of  our  political  obligations  and  a  profound  reverence  for 
political  morality.  No  William  of  Orange  can  free  his  coun- 
trymen from  the  Spaniards,  no  Thrasybulus  can  rescue  his 
city,  no  Solon  can  make  her  prosper,  though  the  laws  he 
gives  were  inspired,  if  they  find  not  support  in  every  bosom ; 
if  there  be  not  the  chord  to  vibrate  in  unison  with  them  ;  if 
the  mass  of  citizens  are  not  willing  to  follow,  because  the 
leader  acts  right  and  wisely.  The  wisest  statesman  is  in  this 
respect  but  like  the  poet.  He  cannot  delight,  elevate,  or  in- 
spire, unless  the  elements  to  act  upon  are  in  the  hearts  of  the 
hearers.  He  cannot  make  new  truths,  and,  if  he  could,  how 
could  he  gain  entrance  for  them  into  the  hearts  of  the  people 
who  were  wanting  in  the  very  sense  to  perceive  them  ?  But 
he  can  boldly  and  strikingly  pronounce  what  until  then  was 
but  dimly  felt  in  the  soul  of  the  hearer,  or  latent  though 
unperceived  in  his  heart.  So  can  the  statesman  clearly  pro- 
nounce and  boldly  act  out  or  gradually  cultivate  what  was 
but  vaguely  felt  by  the  masses ;  he  can  concentrate  what  was 
scattered,  awaken  what  was  dormant,  impel,  regulate,  restrain  ; 
but  he  cannot  create  his  elements.  Harrison,  in  his  Political 
Aphorisms,  says,  "  The  people  cannot  see,  but  they  can  feel." 
If  so,  it  is  the  duty  of  the  statesman  to  see,  and  his  foresight 
cannot  be  acknowledged  unless  the  people  feel  right  and 
are  well  instructed.  The  freer  a  country,  that  is,  the  more 
action  is  guaranteed  to  every  individual,  the  more  necessary 
becomes  a  well-founded  and  general  knowledge  of  political 
duty.    Without  it,  that  free  action  will  serve  but  for  evil  ends. 

XXXVn.  No  doubt  can  be  entertained  but  that  there  are 
at  all  times,  among  millions,  some  individuals  endowed  with 


ITS  GENERAL  IMPORTANCE. 


79 


great  gifts,  with  talents  equal  to  those  of  the  eminent  and 
successful  men  of  happier  periods,  but  they  cannot  make  and 
construct  a  state  and  breathe  into  it  the  inspiration  of  life, 
nor  can  they  guide  it  by  the  noblest  principles,  if  the  people 
do  not  correspond  to  their  exertions,  or  if  the  times  do  not 
call  upon  them.  And  what  are  the  times  but  the  acts  of  the 
people?  Was  there  not  in  all  Italy  one  great  soul  left  at  the 
times  of  the  emperors,  not  one  who  at  the  fairer  periods  of  the 
republic  would  have  won  the  civic  crown  ? 

XXXVIII.  The  state  is  so  intimately  connected  with  nearly 
everything  which  concerns  man,  all  our  interests  are  so  closely 
interwoven  with  its  weal,  that  it  cannot  prosper,  or  fail  of  being 
a  source  of  injury,  without  a  faithful  and  correct  discharge 
of  duties  on  the  part  of  every  citizen.  The  state — the  greatest 
institution  on  earth — elevates  everything  that  appertains  to  it, 
every  duty,  interest,  or  measure,  into  great  importance,  for  the 
simple  reason  that  it  affects  all,  and,  what  with  its  direct  and 
indirect  operation,  it  very  materially  influences  the  moral  well- 
being  of  every  individual.  Cicero  justly  acknowledges  the 
sacredness  of  this  institution  in  the  sight  of  God,  when  he 
says,  "  Nihil  est  enim  illi  principi  Deo,  quiomnem  hunc  mun- 
dum  regit,  quod  quidem  in  terris  fiat,  acceptius,  quam  concilia 
et  coetus  hominum  jure  sociati,  quae  civitates  appellantur." 
(Somn.  Scip.,  c.  3.)  The  state  (with  its  laws  and  government) 
affects  materially  the  manhood  of  all  living  in  it.  Good  laws 
elevate  man  ;  bad  laws,  if  persisted  in  for  a  series  of  years, 
will  degrade  any  society.  Unfortunately,  history  and  the 
existing  state  of  many  countries  prove  this  truth  so  abun- 
dantly that  it  is  useless  to  instance  any  facts.  Mr.  O'Connell's 
speech,  House  of  Commons,  April  28,  1837,  on  the  Irish  Poor 
Law  Bill,  respecting  crime  and  poverty  in  his  native  country 
as  the  effect  of  bad  legislation,  is  worthy  of  all  attention. 

It  is  one  of  the  greatest  blessings  to  live  under  wise  laws 
administered  by  an  upright  government  and  obeyed  and 
carried  out  by  good  and  stanch  citizens ;  it  is  most  grateful 
and  animating  to  a  generous  heart,  and  a  mind  which  cheer- 


8o  POLITICAL  ETHICS. 

fully  assists  in  the  promotion  of  the  general  good,  or  salutary 
institutions.      It  greatly  contributes  to  our  self-esteem  if  we 
live  in  a  community  which  we  respect,  among  fellow-men  we 
gladly  acknowledge  as  fellow-citizens.     Many  of  the  noblest 
actions  which  now  adorn  the  pages  of  history  have  originated 
from  this  source  of  inspiration.     On  the  contrary,  we  feel  our- 
selves humbled  and  dispirited,  we  find  our  own  views  con- 
tracted and  our  moral  vigor  relaxed,  we  feel  deprived  of  that 
buoyancy  without  which  no  manly  and  resolute  self-posses- 
sion can  exist,  it  wears  off  the  edge  of  moral  sensitiveness, 
when    we    see    ourselves    surrounded    by    men    with    loose 
political   principles,   by  a  society  destitute   of  active   public 
opinion,  which  neither  cheers  the  honest  nor    frowns  down 
immoral  boldness;  when  we  hear  of  bribed  judges,  perjured 
officers,  suborned  witnesses,  of  favor  instead  of  law,  and  can 
perceive  only  listless  spectators,  without  any  opinion  of  their 
own,    any  spirit   of  veracity  and  trustworthiness    or  mutual 
dependence.     Moral    susceptibility    gradually  vanishes ;    the 
feeling  becomes  daily  more  blunted  ;  for  everything  in  society 
has  a  reciprocal  effect.     What  is  effect  to-day  becomes  cause 
to-morrow.     Hence  the  rapid  downfall  of  empires  when  once 
corruption  and  depravity  begin ;  evil   begets   evil ;    the   suc- 
ceeding generation  is  worse  than  the  preceding  one,  until  final 
dissolution  follows,  or  a  combination  of  happy  and  extraneous 
circumstances  produces  a  sudden  change,  which,  in  the  nature 
of  things,  cannot  be  frequently  the  case.     Read  the  history 
of  Rome  for  proofs  of  this.     We  see,  therefore,  the  great  im- 
portance of  imprinting  deeply  on  our  mind  sound  principles 
of  public  morality  ;   and  when  can  this  be  done  to  greater 
advantage  and  with  more  certain  consequences  than  in  our 
youth?     If  Erasmus  says,  "At  bonus  princeps  esse  non  po- 
test, qui  non  idem  sit  vir  bonus,"  his  remark  has  equal  force 
and  truth  if  you  substitute  civis  for  pnnceps.     (See  his  Instit. 
Principis  Christiani,  page  583,  B,  vol.  iv.  of  his  Opera  Omnia, 
Leyden,  1703.) 

If  this  knowledge  has  been  of  much  importance  wherever 
nations  have  attained  to  anything  like  wise  and  lasting  insti- 


ETHICS  AND  POLITICS.  8 1 

tutions,  it  is  peculiarly  so  in  modern  times.  For  one  of  the 
main  and  characteristic  differences  between  ancient  states — I 
mean  the  Greek  and  Roman — and  modern  ones  is  this,  that 
in  antiquity  the  state  nearly  absorbed  the  rights  and  interests 
of  the  individual,  and  public  attention  was  directed  far  more 
towards  the  preservation  of  the  whole  than  the  protection 
of  the  individual.  Politics,  however,  established  according  to 
the  point  of  view  which  is  taken  in  modern  times,  places  the 
protection  of  the  individual,  the  individual  rights  of  man,  in 
the  most  prominent  position  among  all  the  objects  of  the 
state.  This  point  will  be  more  fully  discussed  in  the  next 
book.  What  has  been  said,  however,  suffices  for  the  present, 
to  indicate  the  peculiar  importance  which  in  modern  times 
the  individual,  as  such,  occupies  in  the  state,  and  the  conse- 
quent necessity  of  a  sound  knowledge  of  everything  that 
concerns  him  with  regard  to  the  relation  he  bears  to  the  state. 

XXXIX.  As  to  the  second  question:  Is  politics  susceptible 
of  being  treated  in  an  ethical  point  of  view?  the  answer  is 
simply  this  :  Either  the  state,  and  all  the  institutions  and  laws 
which  have  emanated  from  it,  exist  for  the  satisfaction  of  an 
ambitious  and  interested  or  privileged  few,  or  the  state  is  an 
institution  for  a  distinct  moral  end,  or  politics  is  the  effect 
of  mere  chance.  One  of  the  three  must  necessarily  be  the 
case.  The  first  is  so  repugnant  to  every  man's  feeling,  as  well 
as  to  common  sense,  that  none  have  ever  dared  publicly  to 
acknowledge  it,  however  they  may  have  been  inclined  to 
act  on  some  such  view.  If  man  is  a  rational  being,  the  state 
must  have  a  rational  end,  i.e.  it  must  be  founded  in  reason, 
which  would  not  be  the  case  were  it  a  mere  contrivance  for 
the  benefit,  or  rather  the  satisfaction  of  the  desires  and  ap- 
petites, of  a  few.  For  science  would  then  have  to  single 
out  the  iz\^!,  and  establish  scientifically  their  claims.  None 
can  possibly  be  above  reason.  "  Popes  and  kings,  therefore, 
should  seek  a  reason  above  their  own  wills."  (Wiclif,  in  one 
of  his  sermons.  See  Webb  le  Bas,  Life  of  Wiclif,  New  York, 
1832,  page  193.)     And  not  only  popes  and  kings  should  do 

6 


82  POLITICAL  ETHICS. 

so,  but  every  man,  the  politician,  leader,  orator,  general,  presi- 
dent, or  whatever  his  station,  employment,  or  aim  may  be. 
"Res  publica  est  res  populi"  (Cicero,  de  Rep.,  i.  25),  and 
Augustin,  de  Civitate  Dei,  v.  18,  enlarges  it:  "Res  publica, 
id  est  res  populi,  res  patriae,  res  communis."  Whatever  is 
founded  in  reason  cannot  have  an  immoral  end  ;  it  would  be 
a  contradiction  in  itself.  A  very  great  statesman,  Oxenstierna, 
wrote,  indeed,  to  his  son,  "  Nescis,  mi  fili,  quam  parvula  sapi- 
entia  regitur  mundus,"  when  he  encouraged  his  hesitating  son 
to  take  charge  of  an  important  embassy;  but,  though  this  is 
unfortunately  often  the  case,  it  is  not  necessary  on  this  ac- 
count that  it  should  be  so,  either  in  the  intercourse  between 
nations  or  in  municipal  politics.  Common  sense  has  long 
decided  the  matter;  for  when  has  there,  in  modern  times,  a 
declaration  of  war  been  issued  which  did  not  endeavor,  at 
least  apparently,  to  seek  for  a  just  cause  of  war — one  founded 
in  reason  ?  On  the  other  hand,  we  hear  nowhere  more  of 
virtue,  and  all  the  moral  feelings  of  man  more  frequently  ap- 
pealed to,  than  in  politics,  even  in  those  times  when  political 
notions  are  in  the  greatest  confusion,  nay,  then  perhaps  most 
vehemently.  Marat  and  Robespierre,  Reubell  and  St.-Just,  had 
the  name  of  virtue  always  on  their  lips.  Does  this  not  show 
abundantly  that  all  men  are  well  agreed  that  the  state,  and 
consequently  all  politics,  do  not  admit  of  immorality?  Does 
any  man  ever  appeal  to  our  generosity  and  virtue  when  an 
entirely  non-ethical  act  is  to  be  performed,  for  instance,  the 
building  of  a  railroad  ?  Exceptions,  indeed,  there  exist,  but 
they  remain  exceptions,  and  are  rare.  Thus,  a  most  distin- 
guished member  of  the  French  chamber  of  deputies  pro- 
nounced, in  the  year  1831,  from  the  tribune,  that  France 
ought  to  make  war,  for  a  new  dynasty  ought  to  surround 
itself  with  glory — which,  to  be  sure,  supposed  that  the  war 
must  needs  end  victoriously  for  France.  Charles  Gustavus 
of  Sweden  said,  when  he  treacherously  broke  the  peace  of 
Roskild  (concluded  in  1658)  because  success  had  incited  his 
thirst  for  farther  aggrandizement,  that  after  the  conquest  he 
would  easily  prove  his  right,  and  that  there  is  always  a  just 


PUBLIC  ACTS  MUST  BE  MORAL.  83 

cause  for  war,  as  soon  as  there  can  be  found  a  realm  or  prince 
who  is  incapable  of  resisting.  (Raumer,  History  of  Europe 
since  the  Fifteenth  Century,  vol.  v.  p.  387.) 

XL.  Still,  it  must  be  remembered,  these  are  but  exceptions. 
Look  at  the  hypocrisy  studiously  carried  through  so  long  a 
life  as  that  of  Louis  XI.  of  France.  During  all  the  protracted 
iniquitous  transactions  of  the  Castilian  government  against 
the  Moriscos,  the  former  will  always  be  found  desirous  of 
glossing  over  its  own  actions  with  the  appearance  of  justice. 
While  Lerma  persecuted  these  unhappy  beings  with  studied 
cruelty  in  1609,  the  king  spoke  of  mild  and  tender  means 
{suavcs y  blandos ;  in  a  letter  of  the  king  to  the  "Sworn"  of 
Valencia,  dated  September  ii,  1609,  to  be  found  in  Raumer's 
Letters,  etc.,  vol.  i.  p.  214).^  When  one  of  the  blackest  crimes 
that  soil  the  pages  of  history,  the  massacre  of  St.  Bartholo- 
mew, had  been  perpetrated  with  unexampled  treachery,  cruelty, 
and  disgusting  vice  and  villany  by  Catherine  of  Medici  and 
Charles  IX.,  on  August  24,  1572,  the  king,  after  a  long  and 
cold-bloo"ded  consultation  between  his  wicked  mother  and 
Anjou,  as  to  the  invention  of  the  best  means  of  justifying 
themselves  (Tavannes,  xxvii.  275),  proceeded  on  August  26 
to  parliament,  and  there  added  to  this  stupendous  wrong  the 
solemn  lie,  after  having  heard  high  mass,  that  all  had  been 
done  to  save  themselves  from  a  vast  yet  timely-discovered 
conspiracy  of  the  Huguenots.  Their  bodies  were  weltering 
in  blood  and  could  not  gainsay  the  falsehood;  but  on  August 
24,  the  day  of  the  carnage  itself,  the  king  and  queen  sent  a 
declaration  into  all  the  provinces  that  the  whole  had  been 


'  This  act  of  treacherous  crime,  and,  with  regard  to  the  physical  welfare  of 
Spain,  of  egregious  folly,  has  been  represented  in  its  true  light  in  Raumer's 
History  of  Modern  Europe,  already  quoted  in  the  text,  where  most  of  the  sources 
of  the  history  of  this  protracted  act  of  cruel  perfidy  may  be  found.  Mr.  Cape- 
figue,  a  French  writer,  considers,  in  his  work  entitled  Richelieu,  this  act  not  so 
shameful  nor  so  absurd ;  but  his  defence  is  a  poor  piece  of  special  pleading.  So 
was  the  massacre  of  St.  Bartholomew  called,  in  1824,  by  the  ultra-royalist  papers, 
une  riirneur  salutaire. 


84  POLITICAL  ETHICS. 

done  against  their  will  by  the  Guises.  (Thuanus,  1.  ii.  9,  10.) 
Nay,  though  Philip  II.  of  Spain  celebrated  this  event  by  the 
performance  of  a  drama  representing  the  Triumph  of  the 
Church  Militant,  and  Pope  Gregory  XIII.  ordered  a  solemn 
Te  Deum  to  be  performed  in  the  church  of  St.  Louis,  Charles 
IX,  or  his  wily  mother  found  it  necessary  to  order,  even  two 
months  after  the  bloody  deed,  the  torturing  and  execution  of 
an  old  nobleman,  Briquemant,  and  of  Cavannes,  one  of  the 
royal  councillors,  as  having  been  accessories,  so  that  the 
appearance  of  truth  as  to  a  Huguenot  conspiracy  might  be 
kept  up.  (Walsingham,  iii.  228 ;  L'Art  de  verifier  les  Dates, 
ii.  191;  Serres,  451.) 

The  most  striking  instance  of  the  pressing  necessity  of 
justifying  public  acts  is  perhaps  offered  by  Louis  XIV.,  who 
used  to  handle  fraud  like  algebraic  letters.  He,  who  had  a 
clerk  of  the  department  of  foreign  affairs  hung  for  having 
betrayed  state  secrets,  and  at  the  same  moment  sent  money 
to  the  privy  secretary  of  the  Spanish  prime  minister  to  buy 
his  secrets, — he,  whose  minister  De  Lionne  wrote  to  Cheva- 
lier de  Gremonville,  French  ambassador  at  Vienna,  "  The 
king  finds  that  you  are  the  most  impudent  minister  on  earth  ; 
but  in  this  piece  his  majesty  bestows  upon  you  the  highest 
possible  praise  you  can  wish  for;"' — this  same  'king,  who 
broke  treaties  while  almost  in  the  act  of  concluding  them, 
who  never  hesitated  at  cruelty  or  falsehood  if  expedient,  still 
was  obliged  to  pay  his  tribute,  in  the  cloak  of  hypocrisy,  to 
political  morality. 

All  the  endeavors  of  this  monarch  in  foreign  politics  were 
directed  to  this  sole  object,  to  place  a  branch  of  his  house 
upon  the  throne  of  Spain,  after  the  extinction  of  the  Austrian- 


'  Mignet,  N6gociations  relatives  Ji  la  Succession  d'Espagne  sous  Louis  XIV, 
prec6dees  d'une  introduction  et  accompagn^es  d'un  texte  historique,  2  vols. 
8vo,  Paris,  1836.  Mr.  Guizot,  while  minister,  caused  the  abundant  sources  of  the 
French  archives  to  be  used  for  historic  publications.  The  title  of  the  whole  work 
is :  Collection  de  Documens  inedits  sur  I'Histoire  de  France,  publics  par  ordre  du 
Roi  et  par  les  soins  du  Ministre  de  I'lnstruction  publique — of  which  valuable 
publication  the  above  forms  a  part. 


PUBLIC  ACTS  MUST  BE  MORAL. 


85 


Spanish  branch  should  have  taken  place.  Neither  time  nor 
money,  patience,  cunning,  treachery,  deceit,  and  fraud,  nor 
corruption  of  any  kind,  was  spared.  The  road  to  this  great 
object  was  opened  as  early  as  in  the  treaty  of  the  Pyrenees, 
for  even  then  all  possible  precautions  were  resorted  to  in 
order  to  nullify  at  the  proper  time  all  the  renunciations  which 
Maria  Theresa,  a  Spanish  infanta  and  wife  to  Louis  XIV.,  had 
been  obliged  to  make  with  regard  to  the  Spanish  succession 
at  the  time  when  her  marriage-contract  was  formed.  The 
French  cabinet  proceeded  systematically  to  collect  all  sorts 
of  pretences,  to  use  them  at  the  desired  period.^  Why  did 
not  the  French  cabinet  quietly  wait  until  the  death  of  the 
Spanish  monarch,  and  then  strive  to  place  a  French  prince  on 
the  Spanish  throne  by  mere  force  of  arms,  without  alleging 
one  lawful  reason  ?  Because  there  is  that  mighty  voice  in 
every  man's  bosom  which  tells  him  that  there  is  such  a  thing 
as  right  and  wrong,  and  that,  though  it  may  be  in  our  way, 
though  the  individual  may  have  made  up  his  mind  to  disre- 
gard this  difference,  he  knows  the  world  will  not, — nay,  more, 
that  by  openly  proclaiming  this  disregard  he  would  take  away 
the  only  ground  upon  which  a  claim  could  be  made ;  for  a 
claim  presupposes  a  right;  a  right  presupposes  the  ethical 
ground  upon  which  it  must  rest.  Animals  have  no  right 
towards  each  other,  because  non-ethical  creatures;  but  we 
have  rights  and  duties. 

The  Indians  of  South  America  appeared  to  the  conquering 
Spaniards  to  be  possessed  of  but  very  inferior  claims  when 
compared  with  their  own.  Not  even  the  common  laws  of 
humanity  were  considered  sacred  towards  the  aborigines,  and 
yet  did  the  Spaniard  feel  the  necessity  of  some  justification 
before  his  own  conscience  ;  even  his  cruel  conquest  he  wished 
to  found  upon  some  right,  some  moral  basis.  From  the  time 
of  Alonzo  de  Ojeda  a  manifesto  in  Spanish  was  read  to  every 
newly-discovered  tribe,  in  which,  at  great  length,  the  rights 
of  the  pope,  as  vicegerent  of  God,  were  exhibited,  how  he  had 

»  See  note  on  page  84.  > 


86  POLITICAL  ETHICS. 

presented  the  Spanish  crown  with  all  the  Americas,  and  how 
the  Indians,  therefore,  owed  allegiance  to  it,  and  a  refusal  of 
which  would  be  visited  by  extirpation.  The  manifesto  had 
been  drawn  up  with  great  care  by  the  united  effort  of  divines 
and  lawyers.' 

Frederic  the  Great  found  it  necessary  to  justify  himself 
respecting  the  part  he  had  taken  in  the  unhallowed  partition 
of  Poland.  When  provinces  or  colonies  rise  against  their 
mother-countries,  they  issue  justificatory  manifestoes;  the 
sultan,  some  years  ago,  published  an  elaborate  justification  of 
the  conduct  of  his  government  towards  the  Greeks.  And  it  is 
to  be  remarked  here  again,  that  the  more  civilized  the  nations, 
the  more  they  acknowledge  the  necessity  of  vindicating  their 
acts  on  ethical  grounds.  The  rude  alone  make  their  sword  the 
tongue  of  the  balance  of  justice,  or  bow  without  murmur  to 
the  stronger, 

XLI.  Men  have  felt  at  all  times  that  the  unchangeable 
principles  of  morality  are  not  applicable  to  domestic  and 
foreign  politics  precisely  in  the  same  manner  as  in  private 
transactions  or  family  relations.  To  demand  letters  not 
directed  to  us,  in  a  way  that  is  calculated  to  deceive  the  per- 
son who  possesses  them,  in  order  to  induce  him  to  give  them 
up,  and  then  to  publish  those  letters,  would  be  considered,  in 
ordinary  cases,  no  very  honorable  act  indeed.  Yet  who  is 
there  at  present,  American  or  Englishman,  that  would  blame 
Dr.  Hugh  Williamson  of  Pennsylvania  for  the  manner  in 
which  he  obtained  the  dangerous  and  treacherous  letters  of 
Governor  Hutchinson  of  Massachusetts  Bay,  from  an  officer 
in  London,  who  supposed  him  to  be  an  officer  of  the  British 
government  himself,  judging  from  his  positive  demand,  when 
the  superior  clerks  were  absent  from  the  office?  and  who 
blames  Dr.  Franklin  for  publishing  them  ?^     Did  the  Gueux, 


'  The  document  is  to  be  found  in  the  appendix  to  Washington  Irving's  Voy- 
ages and  Discoveries  of  the  Companions  of  Cohmibus. 

"  The  manner  in  which  Dr.  Franklin  obtained  these  important  letters,  which 
caused  so  much  excitement  at  the  time  they  were  published,  in  1772,  and  for 


ETHICS  AND  POLITICS.  8/ 

in  1566,  in  the  Netherlands,  act  wrong  in  stopping  the  mes- 
senger from  the  Spanish  ambassador  Alava  at  Paris,  to  Mar- 
garet, governant  of  the  Low  Countries,  and  in  searching  his 
despatches,  by  which  they  at  length  obtained  incontrovertible 
evidence  of  King  Philip  II. 's  sinister  and  revengeful  plans? 
This  amounts,  however,  to  nothing  more  than  that  circum- 
stances exercise  always  their  influence  upon  the  application 
of  ethical  principles.  I  never  heard  any  one  blame  Columbus 
for  making  use  of  an  eclipse,  in  the  year  1502,  to  deceive  the 
natives  of  Jamaica,  in  order  to  induce  them  by  fear  to  con- 
tinue to  supply  him  and  his  crew  with  food,  when  that  great 
man  was  shamelessly  abandoned  by  the  Spaniards  in  his  colo- 
nies, who  ought  to  have  honored  him  most,  wrecked  in  the 
saddest  condition  of  health  and  with  a  mutinous  crew.' 

These  instances,  then,  prove  in  no  manner  an  absence  of 
the  moral  element  in  politics.  If  such  acts  were  not  justifi- 
able on  other  grounds  than  merely  because  they  were  political 
measures,  they  would  not  be  justifiable  at  all.  There  was 
actually  a  time  when,  in  Italy  for  instance  towards  the  end 
of  the  middle  ages,  ethics  was  almost  totally  discarded  from 
international  intercourse,  which  in  consequence  became 
nothing  more  than  the  merest  calculation  of  expediency. 
Such  contemptible  means  as  vanishing  ink  were  resorted  to 
in  diplomatic  affairs.^  As  to  municipal  politics,  some  men 
have  boldly  avowed  that  "  all  means  are  fair  in  politics,"  not 
in  times  of  revolutionary  disorder,  but  of  profound  peace  and 
social  prosperity;  not  in  the  ardor  of  debate,  but  in  print;  not 
at  that  age  of  Italian  expediency  when  the  holy  host  would 


which  he  was  violently  assailed,  was  a  secret  which  he  faithfully  took  with  him 
to  the  grave.  Dr.  Williamson  avowed  the  fact  to  James  Read,  of  Philadelphia, 
who  communicated  it  to  Dr.  Hosack,  of  New  York.  See  his  biographical 
memoir  of  H.  Williamson,  in  vol.  i.  of  Hosack's  Essays  on  Various  Subjects 
of  Medical  Science,  New  York,  1824.  The  great  simplicity,  boldness,  and  yet 
sagacity  of  the  scheme  add  much  to  its  interest. 

'  See  Washington  Irving's  Life  of  Columbus, 

»  I  have  not  mentioned  in  this  place  Macchiavelli,  probably  as  some  readers 
might  expect;  I  take  a  very  different  view  of  this  great  man,  which  I  have  given 
in  the  article  on  him  in  the  Encyclopaedia  Americana. 


88  POLITICAL  ETHICS. 

be  used  to  convey  poison  to  the  lips  of  the  communicant, 
but  of  late,  in  our  times,  in  our  country.  Yet  in  a  similar 
way  have  men  asserted,  and  in  printed  works  too,  therefore 
well  weighing  what  they  said,  that  all  means,  the  foulest  not 
excepted,  are  fair  for  the  promotion  of  religion.'  If  we  may 
give  up  ethics  in  one  thing,  we  may  do  so  in  all ;  the  princi- 
ple is  the  same ;  and  Charles  V.  when  he  refused  the  offer 
made  by  the  baker  of  Barbarossa  to  poison  his  master,  though 
he  was  an  outlawed  pirate,^  or  Fox  when  he  informed  the 
great  enemy  of  England  that  offers  had  been  made  to  the 
British  government  to  assassinate  him,  acted  but  as  a  poor 
politician.     Not  so,  I  trust.^ 

It  is  one  of  the  chief  objects  of  this  work  to  show  how  the 
principles  of  ethics  are  applicable  to  politics.  If  there  is  at 
present  in  some  countries  so  great  a  confusion  of  ethico- 
political  ideas  that  the  observer  would  well  nigh  lose  his 
hope,  let  us  not  forget  that  nations  may  rise  from  a  state  of 
political  torpor  or  immorality  and  assume  a  station  worthier 
of  the  nature  of  man.  Who  would  deny  that  England  of 
to-day  stands,  as  to  politics  and  public  political  opinion,  far 
above  the  times  of  Charles  II.  and  the  political  corruption 
under  James  II.  ?  Who  would  deny  that  France  has  polit- 
ically improved,  if  we  compare  her  as  she  is,  with  the  times 
of  the  Regent  and  of  Louis  XV.  ?  Who  can  deny  that  the 
probity  of  the  papal  church  government  has  vastly  improved 
since  the  times  of  the  Reformation,  if  we  compare  it  to  what  it 
was  under  the  popes  of  the  fifteenth  century  ? 


'  "  Let  the  women  who  complain  of  the  vices  or  ill  humor  of  their  husbands 
be  instructed  secretly  to  withdraw  a  sum  of  money,  that  by  making  an  offering 
thereof  to  God  they  may  expiate  the  crimes  of  their  sinful  helpmates  and  secure 
a  pardon  for  them."     Secreta  Monita  Societatis  Jesu,  ix.  l6. 

2  Charles  said,  "  I  conquer  my  enemies  with  arms,  not  with  fraud  and  treach- 
ery." Sandoval,  Historia  de  la  Vida  y  Hechos  del  Imperador  Carlos  V.,  ii.  243. 
Vera,  Epitome  de  la  Vida  y  Hechos  del  Emperador  Carlos  V.,  71. 

3  *  Beyer  (Political  State,  1719,  vol.  ii.  344)  mentions  that  Paul  Miller,  a  pri- 
vate trooper,  offered  to  Secretary  Craggs  to  assassinate  the  Pretender.  Craggs 
informed  the  Lords  Justices,  who  ordered  his  dismissal  and  procedure  against 
him  with  the  utmost  severity.     See  Mahon's  England,  i.  523. 


ETHICS  IN  POLITICS.  89 

What  minister  of  state  would  now  dare  to  take  a  pension 
from  a  foreign  monarch,  or  what  judge  a  present  or  bribe  ? 
Yet  nothing  was  more  common,  perhaps,  all  over  Europe,  in 
the  seventeenth  century. 

Much,  however,  seems  yet  in  an  unsettled  state.  Very 
doubtful,  and,  at  times,  decidedly  immoral,  principles  are 
publicly,  sometimes  unwittingly,  proclaimed.  Our  task  is  to 
proceed  in  this  branch  as  mankind  proceeded  with  regard  to 
ethics  in  general.  Let  us  gather  what  is  acknowledged  as 
stable,  let  us  ascertain  why  it  is  so,  and  on  these  principles 
rest  our  further  conclusions. 


CHAPTER     VI. 

Does  Religion  or  Common  Sense  dispense  with  Ethics  in  Politics  ? — Hume's 
View  of  Common  Sense. — What  is  Common  Sense  ? — It  does  not  dispense 
either  with  a  proper  Knowledge  of  Politics  and  Ethics,  or  with  constant  Exer- 
tion and  much  Industry. 

XLII.  Political  Ethics  has  not  appeared  to  many  per- 
sons in  as  important  a  light  as  it  otherwise  would,  had  not 
false  reliance  been  placed  upon  religion  and  common  sense ; 
both  of  which  are  as  important  in  politics  as  in  any  other 
sphere  of  human  action ;  but  they  do  not  dispense  with 
morals  in  politics  any  more  than  anywhere  else.  As  to  the 
distinct  sphere  of  religion,  and  the  effects  of  confounding  it, 
from  whatever  cause  or  motive,  with  politics  or  matters  of 
right,  and  especially  of  taking  the  Bible,  a  code  of  religion 
and  morals,  for  a  political  code,  I  must  refer  the  reader  to 
the  sequel  of  the  work.  It  is  a  subject  which  requires  the 
calmest  investigation.  Respecting  common  sense  as  the  sole 
guide  in  politics,  the  following  is  the  view  I  take. 

XLIII.  Hume,  in  his  Essays,  vol.  ii.  p.  246,  says,  "Though 
an  appeal  to  general  opinion  may  justly,  in  the  speculative 
sciences  of  metaphysics,  natural  philosophy,  and  astronomy, 
be  esteemed  unfair  and  inconclusive;  yet  in  all  questions  with 
regard  to  morals,  as  well  as  criticism,  there  is  really  no  other 
standard  by  which  any  controversy  can  ever  be  decided. 
And  nothing  is  a  clearer  proof  that  a  theory  of  this  kind  is 
erroneous  than  to  find  that  it  leads  to  paradoxes,  which  are 
repugnant  to  the  common  sentiments  of  mankind  and  to  gen- 
eral practice  and  opinion."  No  one  will  deny  that  this  is  true 
in  a  great  degree,  yet  it  requires  very  much  to  be  limited,  or 
we  should  have  in  matters  of  taste  as  well  as  ethics  the  most 
unsettled  standard.  First,  as  to  the  words  "  mankind"  and 
90 


COMMON  SENSE.  qi 

"general  practice,"  they  are  vague.  All  mankind  cannot  be 
meant,  for  the  diversity  of  opinion  as  to  details  is  very  great, 
both  at  different  ages  and  at  the  same  time.  The  African 
slave-trade,  now  declared  by  all  Christian  nations  a  piratical 
crime — Portugal,  the  first  power  who  introduced  it,  abolished 
it  last  by  a  decree  of  December  lo,  1836,  and  Texas  sprang 
into  existence  almost  with  a  declaration  of  its  iniquity  on  her 
lips,  which  had  but  just  pronounced  her  independence — was 
once  a  "general  practice,"  and  Roscoe,  the  pride  of  Liverpool, 
was  hooted  by  that  very  community  on  his  return  from  Par- 
liament in  1807,  for  having  voted  for  the  abolition  of  that 
traffic  (page  290,  vol.  ii.  of  Life  of  William  Roscoe,  Boston, 
1833).  Is  then  meant  by  mankind  our  peculiar  race  or  tribe, 
or  our  nation,  or  our  community,  or  whatever  other  repre- 
sentative of  mankind  be  taken  ?  If  so,  we  shall  find  that  in 
many  cases  what  is  a  paradox  with  one  nation  is  very  far  from 
being  so  with  another.  Respecting  paradoxes  themselves,  we 
have  only  to  remark  that  every  great  truth,  when  first  pro- 
mulgated, sounded  paradoxical  to  the  multitude.  When  the 
Eastern  i^hilosopher  first  called  upon  his  followers  to  do  good 
even  unto  enemies  and  to  be  like  the  sandal-tree  which  sheds 
perfume  upon  the  axe  that  fells  it,  no  doubt  it  appeared  very 
odd,  as  we  have  the  proof  that  Christ's  precept  to  love  our 
enemies  was  but  a  paradox  according  to  the  "general  prac- 
tice" and  opinion  of"  mankind."  There  was  a  time  when  the 
idea  that  the  people  are  after  all  the  great  and  true  fountain 
of  power,  or  that  they  should  have  the  right  to  criticise  the 
acts  of  government,  was  nothing  more  than  an  odd  paradox. 
It  was  decidedly  repugnant  to  the  general  feeling  of  mankind 
in  antiquity  and  the  middle  ages  that  the  man  "  disgraced  by 
labor"  should  in  any  way  stand  equal  to  those  who  did  not 
labor.  To  gainsay  it  would  have  appeared  as  a  mere  paradox. 
When  the  French  rules  of  taste  prevailed,  it  was  a  sheer  para- 
dox to  prize  a  glowing  lyric  or  pathetic  ballad  of  the  middle 
ages  more  highly  than  cold  and  stately  declamation  expressed 
in  formal  alexandrines — nay,  to  value  Shakspeare  higher  than 
Racine  or  Voltaire.     There  was  a  time  when  it  was  an  abso- 


92 


POLITICAL  ETHICS. 


lute  paradox  to  esteem  the  grandeur  and  slender  gracefulness 
of  Gothic  edifices  anything  more  than  the  architecture  of  a 
barbarous  age,  I  do  not  make  use  of  instances  such  as  are 
afforded  by  witchcraft,  or  the  ideas  of  free  trade,  and  a  thousand 
others,  which  sufficiently  prove  that  we  could  not  easily  err 
more  dangerously  than  by  adopting  the  "common  sentiments 
of  mankind"  as  our  sole  guide,  unless  we  have  good  reason 
for  doing  so.  The  instances  which  have  been  cited  are  taken 
from  morals  and  criticism,  the  spheres  for  which  Hume  gives 
the  rules.  Yet,  on  the  other  hand,  nothing  can  be  more  way- 
ward, and  even  arrogant,  than  to  set  up  private  opinion,  judg- 
ment, and  feeling  on  all  occasions,  against  general  opinion  or 
what  has  been  sanctioned  by  successive  generations.  Proper 
limits  are  to  be  observed  :  the  present  chapter,  as  well  as  that 
on  public  opinion  and  the  Political  Hermeneutics,  will,  I  hope, 
either  show  them  or  aid  in  drawing  them  with  greater  dis- 
tinctness. 

XLIV.  For  the  present  I  have  to  do  with  common  sense 
only.  What  is  common  sense  ?  It  appears  to  me  that  the 
word  is  used  in  different  meanings,  two  of  which  appear  as 
the  most  important.  It  either  expresses  a  peculiar  species  of 
judgment,  which  I  shall  designate  more  accurately,  or  that 
which  has  been  settled  as  right,  proper,  allowable,  by  the 
aggregate  judgment  of  a  community  or  successive  genera- 
tions. In  the  latter  sense  it  must  be  taken  when  Guizot  says, 
"  it  is  good  sense  which  gives  to  the  words  their  common 
signification"  (he  might  have  said,  "  it  is  practical  life  which 
necessarily  forms,  shapes,  extends,  and  contracts  the  meaning 
of  words), "  and  good  sense  is  the  genius  (spirit)  of  mankind."  ' 
In  this  case  common  sense  is  not  without  a  close  connection 
with  public  opinion. 


'  The  original  is,  "  C'est  le  bon  sens  qui  donne  aux  mots  leur  signification  com- 
mune, et  le  bon  sens  est  le  g^nie  de  I'humanit^."  (Hist.  g^n.  de  la  Civilisation 
en  Europe,  Lecture  I.)  Degerando,  in  his  Comparative  History  of  the  Philo- 
sophical Systems,  in  French,  calls,  vol.  i.  p.  312,  common  sense:  vulgar  (he 
ought  to  have  said  comtnon)  reason  indeed,  yet  practical. 


COMMON  SENSE.  93 

The  phrase  common  sense  has  come  down  to  us  from  the 
ancient  philosophers  and  those  of  the  middle  ages.  Intclli- 
getitia  cflimminis  expresses  more  what  we  now  mean  by  com- 
mon sense.  Se7istis  covnminis  wSs  with  the  schoolmen  the 
communis  radix  et  principiiim  exteriorum  sensmim.  (See  St. 
Thomas,  Summa  Theologica,  pars  prima  primae  partis,  quest. 
Ixxix.).  With  us,  common  sense — called  in  German  gesiinder 
Moischeiiverstaiid,  i.e.  literally,  sound  human  understanding, 
in  French,  bon  sens,  i.e.  good  sense — means,  I  believe,  if  duly 
investigated,  sound  practical  judgment  [i.e.  that  sound  judg- 
ment which  guides  us  in  acting),  unaided  by  any  art  or  sys- 
tematic train  of  argumentation,  but  sharpened  and  cultivated 
by  practical  life.  That  it  be  sound  involves  its  being  unwarped 
by  prejudice  (be  this  individual,  territorial,  clannish,  etc.),  pas- 
sion, fancy,  fear,  or  anything  else;  but  sound  native  sense  alone 
is  not  common  sense;  it  is  only  the  foundation.  Native  sense 
must  have  been  invigorated  or  practised  by  practical  life,  to 
become  common  sense.  An  Indian  who  has  never  lived 
among  the  whites  might  be  possessed  of  much  common  sense 
among  his  red  brethren,  but  it  would  be  necessary  for  him  to 
live  among  civilized  people,  and  to  learn  how  to  apply  his 
native  sense  to  their  practical  life,  before  we  could  ascribe 
common  sense  to  him.' 

XLV.  The  term  "  common"  is  not  used  in  this  connection 
to  indicate  that  common  sense  is  of  peculiarly  common  occur- 
rence, but  to  express  its  relative  position  to  the  cultivated 
intellect,  searching  and  comprehensive  reflection,  elevated 
reason,  or  expanded  genius,   as  well  as  that  its  exercise  is 


'  Archbishop  Whately  gives  the  following  definition  of  common  sense,  in  the 
preface  to  his  Elements  of  Logic,  and  likewise  in  his  Introductory  Lectures  on 
Political  Economy:  "Common  sense  is  an  exercise  of  the  judgment,  unaided 
by  any  art  or  system  of  rules."  This  definition  seems  to  be  deficient;  for  com- 
mon sense  cannot  be  an  exercise,  an  action,  it  must  be  a  faculty;  and  it  would 
include  genius, — which,  in  the  case  of  a  young  general,  finds  vast  and  new  re- 
sources, unaided  by  any  system  of  rules, — as  well  as  the  humblest  intellectual 
effort  of  an  idiot. 


94 


POLITICAL  ETHICS. 


daily  called  for  by  the  common  occurrences  of  life.  When 
common  sense  is  well  versed  and  practised,  and  judging  for 
the  given  present  case  only,  we  call  it  tact.  Tact  is  instinct- 
ive, practical  judgment ;  alid  by  instinctive  I  do  not  mean, 
in  this  case,  a  species  of  practical  judgment  implanted,  ready- 
made,  by  nature,  but  that  judgment  which  has  been  so  well 
practised  by  experience  as  to  operate  in  ordinary  cases  so 
rapidly  that  we  are  ourselves  unconscious  of  the  operation. 
From  these  remarks  it  will  plainly  appear  that  no  man  can 
dispense  with  a  degree  of  common  sense,  not  only  as  being 
requisite  for  the  common  concerns  of  life,  but  likewise  for 
the  application  of  any  rules,  whether  scientific,  religious,  or 
aesthetic.  The  divine,  without  common  sense,  acts  as  inju- 
diciously as  the  most  learned  lawyer,  the  most  gifted  poet,  or 
the  best-bred  physician  with  a  similar  deficiency. 

The  more  we  move  in  a  sphere  of  action,  such  as  politics 
eminently  are,  the  more  important  strong  common  sense  be- 
comes. We  want  it  always  to  apply  our  rules,  to  fix  on  the 
proper  limits  beyond  which  any  rule  transcends  its  own 
spirit,  to  select  the  proper  means  of  action,  and  to  discover 
the  true  wants.  But  indolence,  arrogance,  ignorance,  and 
cunning  alone  pretend  that  common  sense  suffices  for  all 
the  many  intricate  and  momentous  questions  in  politics,  es- 
pecially when,  what  is  frequently  the  case,  people  mean  by 
common  sense  little  else  than  something  given  to  man  in  a 
finished  state,  which  requires  no  cultivation  or  practice,  but 
decides  intuitively  always  right,  as  the  dog  which  searches 
for  truffles  stops  where  these  plants  are  deep  beneath  the 
surface  of  the  earth. 

XLVI.  There  has  always  existed  a  class  of  flatterers  who 
tell  the  unlettered  that  common  sense  is  sufficient  to  pene- 
trate the  subjects  which  cannot  be  comprehended  but  by 
patient  study  and  faithfully  gathered  experience.  There  are 
books  the  titles  of  which  promise  to  teach  the  art  of  riding 
perfectly,  or  to  speak  French  completely,  in  two  hours.  I 
have  heard   a  professor  of  philosophy  publicly  assert  that 


COMMON  SENSE. 


95 


nothing  but  what  could  be  made  plain  to  the  intellect  of  a 
child  was  worth  anything  in  philosophy,  and  that  the  greatest 
truths  of  philosophy  could  be  made  thus  plain.  How  or  why 
I  have  never  learned.  Why  not  the  same  in  all  other  far  less 
abstract  sciences  ?  I  have  heard  "  the  unsophisticated,  un- 
educated minds  of  people  who  sit  under  their  own  vine  and 
fig-tree,"  publicly  flattered.  Sophistry  is  very  objectionable 
indeed;  but  cultivation  of  mind  is  not  sophistry,  and  an  un- 
cultivated mind,  I  mean  uncultivated  by  the  times,  the  general 
civilization  we  live  in,  the  life  of  the  individual,  etc.,  is  a  very 
rude  thing.  Look  at  the  unsophisticated  New  Zealanders. 
The  world  was  not  made  for  the  indolent ;  the  active  rule. 
We  have  to  work  faithfully,  to  learn  honestly,  and  gather  in- 
dustriously, that  we  may  learn  to  do  right.  We  must  not 
minister  to  one  of  the  worst  dispositions,  by  telling  the  idle 
that  they  have  to  learn  nothing,  that  the  cultivation  of  the 
mind  is  useless.  This  flattery,  however,  has  nowhere  been 
so  much  resorted  to  as  in  politics.  Courtiers  have  told  young 
monarchs  that  they  are  far  above  learning  and  studious 
application,  and  demagogues  have  told  the  people  that  com- 
mon sense  is  sufficient  for  everything.  Do  we  navigate  by 
common  sense,  or  by  observations  taken  skilfully  and  regu- 
larly ?  Do  we  cultivate  the  ground  by  dint  of  common  sense, 
or  by  all  the  experience  of  century  upon  century  stored  up 
in  agriculture,  and  applied,  not  without  common  sense  as  a 
matter  of  course  ?  There  have  always  been  prominent  men 
without  learning;  but  because  Napoleon  conquered  Italy 
when  twenty-seven  years  old,  or  Alexander,  Asia,  before  his 
thirtieth  year,  is  there  no  art  of  war,  no  science  of  tactics  ? 
And,  above  all,  were  their  minds  cultivated  or  not  ?  Besides, 
we  are  often  greatly  mistaken  respecting  the  time  and  in- 
dustry bestowed  by  those  who  have  excelled  on  their  pecu- 
liar subject.  At  times  this  appeal  becomes  peculiarly  danger- 
ous, because  all  men  are  but  too  apt  to  consider  that  to  be 
plainly  pointed  out,  to  be  proved  by  common  sense,  which 
we  see,  nevertheless,  much  distorted  by  our  peculiar  state  of 
feelings  or  prejudices.    As  to  whether  "plain  common  sense" 


96  POLITICAL  ETHICS. 

be  sufficient  to  grapple  with  law  questions,  see  what  I  say  on 
Interpretation  in  Political  and  Legal  Hermeneutics. 

XLVII.  I  cannot  conclude  this  chapter  without  adding  one 
more  remark,  which  is  not  without  its  application  in  politics 
and  law.  It  is  a  common  and  nevertheless  capitally  erroneous 
notion,  that  the  uncultivated  in  any  art  or  science  are  the  best 
judges.  A  picture  maybe  very  poor  indeed  and  yet  be  mis- 
taken by  children  or  animals  for  reality.  It  is  an  observation 
of  frequent  occurrence  ;  and  he  who  told  first  the  well-known 
anecdote  of  Apelles,  or  repeats  it,  to  prove  how  well  the 
Greeks  painted,  because  the  birds  flew  at  the  painted  grapes, 
shows  that  he  knows  little  about  the  art.  Nothing  is  easier 
than  to  make  even  wild  beasts  mistake  coarse  imitations  for 
real  animals.  No  uncultivated  mind  loves  music  which  con- 
sists of  anything  more  than  loud  and  various  sounds.  Pure 
harmonious  music  not  unfrequently  pains  the  savage.  Nature 
has  no  charm  for  the  uncultivated,  except  perhaps  by  way  of 
roving  in  the  open  air.  But  the  starlight  sky,  the  moon  sil- 
vering the  vast  expanse  of  a  rippled  ocean,  the  richness  of  thick 
foliage  interwoven  with  slendjr  flowers,  the  grace  of  the  blade 
and  the  strength  of  the  oak,  have  no  charm  for  the  so-called 
natural  man.  The  most  picturesque  scenes  of  England  were 
considered  no  better  than  barren,  unpleasant  spots,  even  at 
the  time  of  Lady  Montagu.  (See  her  Letters,  late  edition 
by  Lord  Wharncliffe.)  So  we  are  told  that  the  truly  great  in 
the  moral  world  will  never  fail  to  strike  the  uncultivated.  It 
is  radically  wrong;  only  we  must  not  confound  cultivation  of 
soul  with  school  education,  which  may  or  may  not  be  bad,  or 
with  the  distortion  of  the  mind — the  effect  of  vitiated  times. 
Life  and  times  also  educate.  It  is  true  that  that  which  is 
essentially  great,  beautiful,  good,  strikes  that  in  us  which  is 
essentially  human,  and  therefore  will  strike  generally,  i.e.  be- 
yond the  bounds  of  nations  and  ages,  as  the  works  of  Praxit- 
eles, or  a  noble  deed  or  delicate  trait  related  by  Herodotus, 
will  be  appreciated  forever ;  while  that  which  pleases  by  way 
of  fashion  sinks  and  withers  with  the  caprice  or  mistaken  re- 


CULTIVA TION  INDISPENSABLE. 


97 


finement  which  produced  it.  Yet  it  requires  due  cultivation 
to  value  it.  This  mistake  is  founded  upon  the  still  more  gen- 
eral confusion  of  ideas  by  which  rude  and  uncultivated  minds 
are  considered  as  being  in  a  more  natural  state  than  cultivated 
ones.     More  of  this  in  the  next  book. 

It  is  very  true  that  men  fall  in  love  with  what  has  cost  them 
much  labor,  and  many  abuses  are  perpetuated,  simply  because 
it  has  given  those  who  ought  to  effect  a  reform  much  trouble 
and  perseverance  to  bring  their  minds  to  submit  to  them.  But 
this  proves  nothing  against  us.  Many  excellent  law  reforms 
have  been  started  by  non-professional  men,  because  they  saw 
more  freely,  judged  more  boldly,  felt  more  deeply.  In  the 
second  book  I  shall  quote  a  remarkable  passage  of  Lord 
Bacon's  on  this  subject.  Yet  what  they  saw  or  felt  or  judged 
of  they  did  not  perceive  intuitively.  The  nobler  anything  in 
creation,  the  more  it  requires  cultivation,  development;  the 
lower  the  animal,  the  closer  it  is  connected  with  the  whole  ma- 
terial world  around  it,  the  less  it  acts  by  volition.  The  noblest 
object  in  the  scale  of  our  terrestrial  creation  is  the  human 
mind,  which,  considering  the  degree  of  perfection  which  it 
may  reach,  starts  less  finished  into  existence  than  anything 
else.  It  may  be  compared  to  a  few  given  points  or  positions 
in  the  highest  analysis,  from  which  a  vast  solution  is  to  be 
derived.  Again,  the  noblest,  vastest,  highest  institution  is  the 
state,  which  for  that  very  reason  requires  more  cultivation  and 
exertion  of  the  highest  and  best  powers  than  any  other.  His- 
tory abundantly  shows  that  it  is  the  cultivated,  not  the  pe- 
dantically learned,  who  are  the  leaders ;  the  instinctive  fear 
of  ignorance  makes  it  shun  or  yield  obedience  to  cultivation. 
The  belief  that  learning  trammels  the  mind  for  practical  pur- 
poses, and  especially  for  politics,  is  very  common;  yet  throw 
a  glance  at  the  list  of  the  great  counsellors  of  monarchs  or 
nations,  and  select  those  who  have  served  them  best  and  most 
truly,  they  have  been  nearly  all  hard,  honest  students ;  look 
at  such  men  as  Michel  I'Hospital,  Sir  Thomas  More,  or  the 
friar  Sarpi,  whom  Venice,  the  shrewdest  of  all  republics,  ap- 
pointed adviser  to  the  state.     Nor  shall  you  arrive  at  different 

7 


98  POLITICAL  ETHICS. 

results  if  you  view  the  nations  of  the  earth,  Greece,  which 
stands  at  their  head,  did  not  arrive  at  that  proud  historical 
eminence  by  mere  instinctive  genius;  see  how  her  great  men 
labored  and  toiled,  though  no  nation  probably  was  at  the 
same  time  more  happily  gifted ;  how  earnestly  her  states- 
men as  well  as  artists  studied.  Think  and  act,  and  you  will 
influence. 

XLVIII.  If  we  are  desirous  of  doing  our  duty,  we  must 
know  it ;  and  we  cannot  know  it  without  an  accurate  appre- 
ciation of  the  relations  which  may  call  for  its  exercise.  In 
political  ethics,  therefore,  it  will  be  necessary,  before  all,  to 
have  a  distinct  idea  of  what  the  state  essentially  is.  I  have 
given  my  views  of  this  greatest  institution  in  the  next  book. 
I  shall  be  obliged  to  treat  in  it  many  problems  properly 
belonging  to  natural  law;  but  the  reader  will  find  that  this 
apparent  deviation  from  the  subject  strictly  before  us  was 
necessary.  We  cannot  thoroughly  discuss  and  investigate  the 
duties  of  the  citizen,  for  instance,  when  in  the  opposition,  his 
obligation  as  to  unwise,  unjust,  or  depraving  laws,  his  rightful 
conduct  as  an  executive  officer,  in  a  word,  all  his  ethical  rela- 
tions growing  out  of  the  state,  without  first  inquiring  into  the 
essence  of  this  institution ;  and  as  I  cannot,  without  many 
reservations,  subscribe  to  any  extant  political  theory,  I  shall 
be  obliged  to  give  my  own  views,  before  I  proceed  to  treat  of 
political  ethics  proper. 


BOOK    II. 

THE    STATE. 
CHAPTER    I. 

The  Law  is  everywhere. — What  is  Law  ? — Sociality. — Origin  of  the  Family. 
— Of  Society. — Everything  conspires  to  lead  Men  to  Society.— Strong  and 
natural  Ties  in  Family  Affection,  Language,  Division  and  Union  of  Labor. 

I.  If  you  leave  your  home  to  take  an  airing,  you  may  walk 
in  security  on  the  side-walk  of  the  street,  because  you  know 
that  no  rider  will  disturb  you.     Who  or  what  prevents  the 
people  on  horseback  from  making  use  of  that  part  of  the  pub- 
lic road?     The  law,  or,  if  they  were  to  disregard  it,  certain 
officers,  that  is,  men  invested  with  authority  likewise  by  the 
law,  who  have  been   charged  to  enforce   this  among  other 
laws.     This   law,  then,  protects  you.     You  proceed   farther, 
and  find  these  words  on  the  sign-board  of  a  bridge,  "  Keep  to 
the  right,  as  the  law  directs,"  addressed  to  those  who  guide  a 
vehicle.     It  is  a  law  which  commands  something.     You  may 
pass  an  orchard  with  inviting  fruits;  the  fence  surrounding 
it  might  be  easily  scaled,  and  you  feel  an  urgent  impulse  to 
slake  your  thirst  with  the  juicy  apples  before  you  ;  yet  you 
must  not  do  it.     Were  you  to  follow  the  dictates  of  your  de- 
sires, though  most  natural  and  perfectly  innocent,  the  law 
would   punish  you,  because  it  protects  the   orchard  as  the 
property  of  some  one  else.     The  law  is  made  already,  and 
thus  it  warns  you.     A  decrepit  and  poor  man  is  prevented  by 
certain  officers  from  asking  those  persons,  who  show  by  their 
dress  that  they  live  in  ease,  to  give  him  from  their  superfluity 
that  which  he  is  unable  to  obtain  by  his  own  exertions;  he  is 
taken  to  a  house  designated  by  the  law  as  a  home  for  those 

99 


lOO  THE  STATE. 

persons  who  cannot  earn  their  hving.  You  sail  on  the  vast 
ocean,  at  a  great  distance  from  all  society  ;  a  man-of-war,  per- 
haps belonging  to  a  different  nation,  thousands  of  miles  from 
your  own,  bids  you  to  lie  to  and  show  your  colors.  An 
officer  comes  on  board  your  vessel,  asking  for  your  papers, 
and  requesting  you  to  go  with  him  on  board  his  own.  If 
you  refuse  to  comply  with  his  request  you  expose  yourself  to 
vexations,  perhaps  to  danger.  It  is  the  law  of  your  land,  and 
that  observed  among  nations,  which  obliges  you  to  provide 
yourself  with  those  papers  and  to  produce  them  under  these 
circumstances.  In  a  foreign  port  a  consul  of  your  own  nation 
advises  and,  if  need  be,  protects  you.  The  law  directs  him 
to  do  so.  You  see  an  individual  depriving  another  of  his  life, 
violently  and  considerately;  yet  nobody  attacks  the  one  who 
kills,  or  rescues  the  other,  doomed  to  die,  because  the  law  has 
decided  that  he  should  die  in  this  manner — it  is  an  execution. 
The  law  establishes  schools  and  obliges  parents  to  send  their 
children  to  them.  The  law  assists  a  poor  man  to  obtain  his 
dues  from  a  rich  one,  and  again  it  protects  the  rich  so  that 
the  poor  shall  have  no  more  than  their  due.  A  single  indi- 
vidual says  the  harshest  things  of  those  in  power,  yet  no  one 
molests  him,  because  the  law  has  said  that  he  may  do  so; 
and  again,  there  are  laws  which  all  or  nearly  all  dislike,  or 
declare  unprofitable,  nay,  even  cruel,  and  yet  they  are  obeyed 
unaided  by  physical  force.  The  law  has  built  highways, 
united  rivers,  severed  mountains ;  it  takes  away  property  for 
the  public  benefit,  and  protects  it;  sends  expeditions  into  re- 
mote regions,  founds  libraries  and  collections  of  works  of  art, 
adorns  and  beautifies  ;  takes  care  that  the  merchant  measures 
with  a  true  yard-stick,  and  tells  him  in  what  money  he  must 
pay  his  debts;  it  condemns  unwholesome  food,  prohibits 
your  having  more  than  one  wife,  punishes  public  immorality, 
interferes  if  your  occupation  disturbs  or  annoys  others, 
obliges  you  at  times  to  take  up  arms,  at  others  prevents  you 
from  using  them  to  avenge  the  most  signal  injustice,  and  at 
others,  again,  it  permits  you  to  use  them.  What,  then,  is  this 
law,  invisible,  yet  seen  in  its  effects  everywhere  ?     Whence 


WHAT  IS   THE  LAW?  10 1 

does  its  binding  power  flow,  that  we  obey  it,  even  though  we 
disapprove  of  it,  and  though  we  are  unactuated  by  fear; 
which  interferes  with  my  most  natural  appetites,  may  deprive 
me  even  of  the  simple  right  of  locomotion  and  confine  me  in 
a  lonely  cell ;  gives,  divides,  and  defends,  or  takes  away,  prop- 
erty; assures  me  that  it  will  carry  out  my  will  and  dispo- 
sition, even  after  my  death,  and  defeats  my  will  though  dis- 
tinctly pronounced ;  protects  my  life,  and  yet  may  demand 
of  me  to  expose  it,  or  may  take  it  under  certain  circum- 
stances ;  prohibits  me  from  avenging  wrongs,  interferes  with 
my  own  disputes,  tells  me  I  must  not  do  a  thousand  things, 
though  I  may  have  a  strong  desire  to  do  them,  or  that  I 
must  do  things  to  which  I  feel  a  decided  aversion ;  in  fine, 
which  accompanies  me  wherever  I  may  go,  penetrates  into 
all  relations  of  men  to  men,  to  animals  and  things,  and,  what 
is  most  remarkable,  is  never  intermitted  or  suspended,  but 
continues  to  act  and  every  day  creates  new  rules  and  regula- 
tions for  man's  conduct  and  his  various  relations,  and  with 
unceasing  and  inexhaustible  energy  seizes  upon  every  new 
condition  of  men  or  things  that  may  spring  up  ?  What  is 
this  law,  that  is  so  closely  connected  with  ourselves  and 
everything  relating  to  us  that  few  things,  indeed,  are  out  of 
its  reach,  that  it  is  carried  along  with  every  individual  into  all 
new  relations,  actions,  and  operations;  which  extends  overmen, 
animals,  the  fruits  of  the  field,  the  game  and  trees  of  the  forest, 
the  rocks  and  minerals  in  the  bowels  of  the  earth;  which  is 
so  inseparable  from  man  that  whatever  he  touches  he  brings 
under  its  domain,  even  the  produce  of  the  vast  and  distant  sea, 
in  fish,  whale,  seal,  plants,  shells,  amber,  and  pearls,  and  appro- 
priates what  the  fury  of  the  winds  had  carried  to  the  bottom 
of  the  ocean,  ownerless  as  it  may  be,  the  moment  it  is  brought 
to  light,  to  human  use  again  ?     What  is  this  law? 

Law  is  the  direct  or  indirect,  explicit  or  implied,  real  or 
supposed'  expression  of  the  will  of  human  society,  repre- 


'  Direct  or  indirect,  i.e.  by  laws  which  emanate  directly  from  the  highest  au- 
thority of  the  state,  or  from  societies  founded  or  permitted  to  exist  by  the  state. 


102  THE  STATE. 

sented  in  the  state,  or,  of  a  part  of  human  society  constituted 
into  a  state.  And  what  is  this  state  ?  Whence  does  this 
derive  its  all-pervading  power,  and,  more  especially,  its  right 
to  this  power?  How  did  it  originate?  How  far  does  its  right- 
ful power  extend,  or  is  it  unlimited,  and  is  there  absolutely 
nothing  beyond  its  reach  ? 

n.  We  have  seen,  in  the  first  book,  that  morality  neces- 
sarily implies  individuality.  No  virtue,  merit,  fault,  or  crime, 
in  the  strict  sense  of  the  term,  can  be  common  stock  among 
several  individuals.  There  is  no  accountability  without  indi- 
viduality. If  three  men  jointly  save  the  life  of  a  fellow-man, 
at  the  imminent  risk  of  their  own,  or  murder  him,  that  which 
is  good  or  wicked  in  these  joint  actions  belongs  separately  or 
individually  to  each  of  them.  In  the  latter  case,  the  death 
of  the  murdered  man  was  the  joint  effect  of  the  separate 
actions  of  three  individuals ;  but  the  crime,  the  murder,  that 
is,  the  criminality  of  the  action,  is  each  one's  own,  provided 
the  aid  of  each  in  perpetrating  the  act  was  equally  essen- 
tial in  bringing  about  the  criminal  act.  Simple  as  this  truth 
is,  yet  there  have  been  people  who  reasoned  in  this  manner  : 
"Since  but  one  murder  was  committed,  and  three  persons 
jointly  effected  it,  it  appears  that  each  one  cannot  have  com- 
mitted a  murder,  but  only  part  of  it,"  thus  confounding  the 
effect,  that  is,  the  extinction  of  the  life  of  one  human  being, 
with  the  moral  action,  the  murder.  As  if  among  the  thugs 
in  the  East  Indies,  the  shumseea,  or  "  holder  of  hands,"  were 
not  as  much  a  murderer,  and  as  guilty,  as  the  bhurlote,  or 
"  strangler." 

III.  Besides  man's  individuality,  we  have  now  to  notice  his 
sociality,  or  the  necessity  imposed  upon  him  to  associate,  both 
for  the  purpose  of  obtaining  ends  of  the  highest  importance 
in  the  physical  as  well  as  intellectual  and  moral  world. 


Explicit  or  implied,  i.e.  by  way  of  custom,  which  again  may  have  been  acknowl- 
edged distinctly  or  tacitly.     (See  on  Obedience  to  the  Laws). 


THE  FAMILY.  103 

IV.  Of  all  animals,  man  is  born  not  only  in  the  most  help- 
less state,  but  the  infant  requires  the  care  of  its  mother  long 
after  it  has  ceased  to  derive  its  nourishment  from  her,  which 
causes  not  only  a  physical  but  also  an  intellectual  education. 
Hence  the  fact  that  the  attachment  between  human  parents 
and  their  offspring  is  far  more  enduring  than  between  other 
animals.  This  education  lasts  so  long,  the  child  requires  the 
care,  protection,  and  guidance  of  its  parents  for  so  extensive  a 
period,  that  they  may  have  other  children  before  the  first  is 
able  to  take  care  of  itself  From  this  circumstance,  and  the 
continuity  of  conjugal  attachment,  which  is  not,  as  with  ani- 
mals, limited  to  certain  seasons,  origipates  the  perpetuity  of 
the  conjugal  union,  as  well  as  a  mutual  attachment  among 
the  children,  while  with  other  animals  no  connection,  or  a 
very  limited  one  indeed,  exists  between  the  offspring  of  the 
various  seasons.  The  protracted  state  of  the  child's  depend- 
ency upon  the  parents  produces  habits  of  obedience,  respect, 
and  love,  and,  at  a  more  advanced  period,  a  consciousness  of 
mutual  dependence.  The  family,  with  its  many  mutual  and 
lasting  relations,,  increasing  in  intensity,  is  formed.  The 
members  of  a  family  soon  discover  how  much  benefit  they 
derive  from  reciprocal  assistance,  and  from  a  division  of  occu- 
pation among  them,  since  man  is  placed  in  the  world  without 
most  of  those  strong  and  irresistible  instincts  which  are  given 
to  other  animals  for  protection  or  support,  and  which  seem 
to  increase  in  specific  intensity  the  lower  the  animal  stands 
in  the  scale  of  animate  creation,  thus  approaching  more  and 
more  the  plant,  which  lives  without  any  self-action — an  abso- 
lute slave  to  season,  clime,  and  soil. 

So  little  is  man  instinctive,  that  even,  his  sociality,  so  indis- 
pensable to  his  whole  existence,  has  first  to  be  developed. 
He  is  led  to  it  indeed  by  the  natural  relations  between  the 
progenitors  and  their  ofiTspring,  as  we  have  seen ;  but  he  is 
not,  strictly  speaking,  a  gregarious  animal.^     Gregarious  ani- 


'  See  Cuvier's  Le  Regne  Attimal,  article  Homme,  page  69  et.  seq  of  vol.  i., 
Paris  edition  of  1829,     The  work  has  been  translated. 


I04 


THE  STATE. 


mals  do  now  congregate  as  they  have  ever  done ;  but  man's 
sociahty  increases  infinitely  with  every  step  he  makes  in  the 
progreoS  of  civilization.  His  sociality  is,  on  this  account,  not 
the  lesj  natural.  We  shall  presently  see  the  true  meaning  of 
this  term  applied  to  man. 

Man  does  neither  act  by  instinctive  impulses,  so  numer- 
ous and  so  strong  regarding  specific  actions,  as  we  find 
them  with  the  brute,  nor  does  he  lay  the  foundations  of 
the  many  institutions  which  become  important  in  course  of 
time,  after  mature  reflection,  as  if  he  knew  at  the  time  to  what 
momentous  consequences  they  would  lead.  It  is  a  common 
error,  which  has  misled  many  of  the  greatest  philosophers,  to 
ascribe  to  the  free  action  of  ripe  judgment  and  forecast  what 
must  be  derived  from  quite  a  different  source.  Nearly  all  the 
mistaken  notions  of  the  origin  of  the  state  can  be  reduced  to 
this  fallacy.     Mr.  Say '  says,  the  first  men  united  into  societies 


'  Tableau  ghiirale  de  F Economic  des  Socikis,  page  544,  et  seq.,  in  Say's  Cours 
C07nplet  d'Economie  politique  pratique,  3d  edit.,  Brussels,  1836. 

I  may  mention  another  mistake  of  Say's  ;  his  name  stands  in  this  case  but  for 
a  large  class  of  reasoners.  On  page  545  of  the  above  work  and  edition,  he  says, 
the  principal  object  of  all  human  societies  is  to  provide  for  their  wants  (by  which 
physical  wants  are  meant).  How  does  he  know  that  this  is  the  chief  object? 
Because,  says  he,  we  find  this  trait  in  all  societies,  rude  or  cultivated.  As  an  in- 
stance how  to  proceed  in  order  to  find  the  essential  point  of  any  institution  and 
to  separate  it  from  what  may  be  accidental,  he  mentions,  on  a  previous  page, 
■  marriage,  and  argues  thus :  "  We  shall  immediately  see  that  it  is  the  want  of 
nature  which  induces  man  to  unite  with  woman,  to  produce  children,  and  to 
bring  them  up,  in  order  to  see  himself  replaced  by  them  in  the  course  of  time. 
This  is  the  essential  in  marriage,  that  which  constitutes  it."  All  the  rest,  as 
ceremonies,  etc.,  he  declares  as  accidental.  Does  man,  desirous  of  marrying, 
really  argue  thus?  Has  he  really,  at  that  period,  the  continuation  of  mankind  so 
much  at  heart  ?  Is  marriage  with  most  men  the  effect  of  reflection  ?  But  we 
■waive  this,  and  shall  only  remark  the  grossly  illogical  process  of  argumentation. 
That  which  is  common  to  all  the  species  of  a  genus  is  therefore  the  essential  point 
of  them  !  All  apples  are  round  or  nearly  so,  all  horses  have  four  feet,  therefore 
roundness  is  the  essential  point  of  apples,  and  quadrupedity  of  horses.  Procrea- 
tion is  not  the  characteristic  of  marriage,  for  if  so  then  it  belongs  to  all  animals. 
It  is,  among  other  things,  the  permanency  of  this  union  of  persons  belonging  to 
different  sexes,  and  the  exclusiveness  (whether  monogamic  or  polygamic),  which 
makes  the  union  a  marriage;  and  its  object  is  far  higher  than  mere  procreation, 
which,  as  we  see  from  the  animals,  does  not  require  a  permanent  union.     It  is 


THE  FAMILY.  I05 

to  protect  themselves  and  to  assist  each  other  in  obtaining 
food.  This  is  erroneous :  doubtless  they  soon  found  out 
that  they  might  protect  and  assist  each  other  in  hunting,  fish- 
ing, tilling  the  ground ;  but  they  were  already  united  when 
they  found  it  out,  or  they  would  never,  perhaps,  have  dis- 
covered it.  How  rare  are  the  instances,  and  these  few  only 
at  how  advanced  a  period  of  human  society,  of  a  number 
of  people  congregating  together  purposely  and  after  well- 
weighed  dehberation  !  It  is  fallacious,  I  repeat,  to  ascribe  our 
knowledge,  experience,  and  views  to  former,  and  especially 
the  earliest,  ages.  The  ancients  were  well  aware  of  the  fact 
that  men  had  not  united  into  societies  by  the  free  consent  of 
previously  disunited  individuals,  but  were  kept  together  by 
their  nature.  They  went,  however,  too  far  on  the  other  side. 
Cicero  says,  bees  do  not  congregate  for  the  purpose  of  con- 
structing a  honeycomb,  but,  being  by  nature  gregarious  ani- 
mals, combine  their  labors  in  making  the  comb;  and  man 
even  still  more  is  formed  by  nature  for  society,  and  subse- 
quently as  a  member  of  society  promotes  the  common  good 
in  conjunction  with  his  fellow-creatures.  Neither  one  nor  the 
other  is  the  case.  It  is  true,  indeed,  that  man  is  led  to  pro- 
mote the  final  ends  of  society,  to  move  towards  them,  long 
before  he  is  fully  aware  of  them ;  but  he  is  not,  as  has  been 
stated,  instinctively  gregarious,  nor  does  he  join  society  in 
consequence  of  reflection.  He  is  led  to  do  it  by  his  nature, 
physical  and  intellectual,  which  gradually  unfolds  itself  with 
every  step  of  progress  he  makes.  By  the  nature  of  man  is 
understood  something  very  different  from  instinct,  as  will 
appear  from  the  sequel.     But  why  did  men  unite  or  remain 

the  family  life,  the  development  of  all  the  fruitful  relations  within  the  family, 
and  the  protection  of  the  female,  and  education  of  the  young,  which  form  some 
of  the  essential  objects  of  marriage.  The  characteristics  of  marriage  are  the  per- 
manency and  exclusiveness  of  union  between  individuals  of  different  sexes ;  for 
the  marriage  is  marriage  though  theje  be  no  issue.  But  Say  fell  into  this  mistake 
because  he  adopted  the  almost  universal  error  of  looking  backward  instead  of  for- 
ward, of  looking  to  the  savage  man,  yet  ascribing  to  him  views  and  foresight  of 
more  advanced  periods — instead  of  considering  the  civilized  man  and  the  in- 
variable fruits  of  civilization,  when  the  problem  is  to  discover  man's  true  nature. 


I06  THE  STATE. 

united  ?  How  did  they  come  to  congregate,  long  before  they 
were  aware  or  could  be  conscious  of  the  many  advantages 
derivable  from  association  ?  Because  they  could  not  help  it. 
Their  nature,  physical  and  moral,  their  constitution,  their 
affections,  kept  them  together,  but  did  not  originally  lead 
them  to  it  from  a  state  of  isolation.  Separation  is  only  a 
second  step ;  total  and  protracted  insulation,  however,  the 
unnatural  state  of  some  later  periods. 

V.  The  fact  that  men  remained  socially  together,  lived 
united  in  a  family,  caused  them  to  make  ample  use  of  the 
organs  of  speech,  so  peculiar  to  man' — language  developed 
itself,  the  most  powerful  of  all  ties.  Experience,  knowledge, 
acquired  skill,  could  now  be  transmitted  from  one  to  another, 
from  the  older  to  the  younger,  traditionally  from  one  gen- 
eration to  another.  The  same  with  regard  to  affections,  to 
experience,  enjoyments,  dangers,  sufferance,  and  supposed  or 
really  great  actions.  Language  gave  continuity  to  the  family, 
tribe,  or  larger  society  as  such ;  by  language  and  its  power 
of  transmitting  ideas,  distant  members  of  the  same  family 
were  enabled  to  know  that  they  belonged  to  the  same  stock, 
were  people  of  the  same  extraction ;  family  recollections, 
prejudices,  and  affections  expanded  into  the  common  feelings 
of  the  tribe.  Language  became  a  new  and  potent  agent,  both 
in  the  development  of  man's  character  and  the  progress  of 
civilization,  however  slow  this  must  have  been  in  the  begin- 
ning, especially  before  the  art  of  writing  was  invented ;  in 
uniting  generations  with  generations,  and  in  awakening  in 
man  the  consciousness  that  he  is  essentially  a  member  of  a 


'  See  Herder's  Treatise  upon  the  Origin  of  Language  (a  "  crowned"  prize 
Essay),  translated  from  the  German,  London,  1837.  I  wish,  however,  not  to  be 
understood  as  agreeing  with  those  scholars  who  ascribe  the  origin  of  language  to 
this  superiority  of  the  organs  alone.  The  noblest  organ  would  not  have  pro- 
duced language,  had  man  not  felt  Urged  to  express  thoughts  and  feelings.  See 
likewise  the  various  works  on  the  human  voice,  for  instance  that  of  Dr.  Rush. 
[/.^.,  language  could  not  exist  without  high  degrees  of  memory,  forecast,  imagi- 
nation, abstraction,  generalization,  etc.  Language  is  the  voice  of  a  highly- 
endowed  soul.     A  brute  soul  does  not  need  it.] 


DIVISION  OF  LABOR. 


107 


society,  not  only  as  to  its  present  existence,  but  likewise  as  to 
its  connection  with  previous  and  future  generations,  that  he  is 
indebted  to  the  former,  and  that  the  latter  will  depend  upon 
him,  Man  began  to  perceive  that  he  is  closely  united  with  a 
permanent  society,  that  his  weal  and  woe  are  interwoven  with 
it.  As  he  has  affection  for  the  members  of  the  same  family, 
so  he  found  them  enlarged  into  affections  for  a  wider  society, 
he  felt  himself  mingled  with  it,  with  its  recollections,  its  his- 
tory, and  its  future  destiny ;  he  loves  his  tribe,  his  nation,  his 
country,  until  at  last  this  feeling  becomes  a  distinct  and  ardent 
devotedness  to  his  country,  becomes  patriotism,  and  the  phi- 
losopher pronounces,  non  nobis  sed  rei-publicse  nati  sumus. 

VI.  The  various  members  of  a  family  could  not  live  to- 
gether for  any  length  of  time  without  a  certain  degree  of 
division  of  labor.  No  number  of  individuals  can  associate 
with  one  another,  for  whatever  purpose  this  may  be,  not  even 
children  for  the  sake  of  playing,  without  dividing,  in  a  degree, 
labor  among  them.^  Indeed,  the  first  division  of  labor  must 
needs  have  begun  between  man  and  wife,  brought  and  kept 
together  originally  by  physical  difference  and  social  desires. 
Division  of  labor,  and  what  is  indispensably  connected  with 
it,  union  of  labor  or  association  of  energy,  leads  naturally  to, 
and,  in  fact,  is  of  itself,  exchange,  bartering,  so  peculiar  and 
characteristic  of  the  human  species,  as  we  have  seen  in  the 
first  book.  This  forms  another  bond  of  society.  The  division 
of  labor  and  consequent  exchange  lead,  moreover,  soon  to 
the  idea  of  property,  the  desire  of  retaining  free  mastership 
over  that  which  we  have  acquired  by  our  own  industry,  per- 
severance, courage,  sagacity,  or  any  other  exertion  of  our 
mind  or  body,  or  by  good  fortune. 


'  Men,  ever  so  strange  to  one  another,  if  brought  together,  nitist  divide  labor. 
All  cannot  row  and  steer  at  the  same  time.  When  a  caravan  halts  after  a  day's 
journey,  one  of  each  mess  will  naturally  attend  to  the  camels,  another  will  pre- 
pare the  pillau,  a  third  will  unroll  the  mats.  The  inmates  of  each  room  in  a 
hospital  always  form  soon  a  little  community  founded  on  the  division  of  labor. 
Everything  conspires  naturally  to  unite  men ;  reflection,  at  a  later  period,  finds 
out  how  salutary,  what  a  blessing,  sociality  is. 


CHAPTER    II. 

Property. — Mine  and  Thine. — Origin  of  Property. — Various  Titles. — Individual 
Property  is  necessaiy  for  Man. — Does  not  arise  from  Man's  Iniquity. — Man 
never  lives  or  can  live  without  Property. — Slow  Development  of  Property. — 
International  Acknov/ledgment. — Copyright. — Property  with  Agriculturists. — 
Civilization  and  Population  depend  upon  it. 

VII.  The  terms  mine  and  thine  signify  a  comparatively 
close  or  exclusive  relation  between  a  person  and  some  thing 
or  another  person.  That  thing  to  which  we  apply  the  term  in 
its  most  intense  meaning,  that  is,  expressive  of  perfect  master- 
ship over  it,  the  right,  the  power  of  free  disposal  over  it,  is 
called  the  property  of  this  person.  Though  there  is  an  infi- 
nite gradation  of  all  the  various  relations  to  which  the  words 
mine  and  thine  are  applied,  yet  they  all  have  this  in  common, 
that  a  peculiar  relation  between  the  two  things  or  beings  is 
meant.  We  say,  my  country,  my  king,  my  son,  my  horse,  my 
beauty  (if  we  wish  to  designate  one  we  admire  particularly), 
my  sunset,  etc.  Man  did  not  at  once  distinguish  very  ac- 
curately between  all  these  relations ;  peculiar  closeness  of 
relation,  founded  on  whatever  ground,  was  frequently  con- 
sidered as  establishing  that  which  we  now  call  exclusively 
property.  The  father  felt  that  his  child  was  in  a  peculiarly 
close  relation  to  him,  both  on  account  of  his  physical  relation 
to  himself,  and  also  because  he  protected  the  son  ;  the  child, 
therefore,  was  long  considered  the  property  of  the  father.  The 
close  relation  of  the  wife  to  the  husband,  her  dependence 
upon  him,  made  her  to  be  considered  the  property  of  the 
husband.  She  was,  and  to  this  day  with  many  tribes  is,  sold 
to  him  ;  even  with  nations  with  whom  she  has  acquired  a 
more  independent  position,  she  continues,  by  way  of  ancient 
marriage  ceremony,  to  be  sold  to  the  wooer. 

The  ideas  mine  and  thine  must  have  originated  with  the 
io8 


MINE  AND    THINE. 


109 


first  thoughts  of  man.  As  soon  as  there  existed  more  than 
one  family,  more  than  one  couple  of  parents  with  their  re- 
spective children,  the  idea  of  this  close  relation  must  neces- 
sarily have  been  clear  in  the  mind  of  men.  The  child  is  much 
more  emphatically  the  parent's,  than  the  wife  is  her  husband's. 
She  may  cease  to  be  his,  the  child  cannot  change  its  relation 
to  its  parents.  Besides,  conjugal  relations  are  but  loosely 
defined  and  acknowledged  with  most  tribes,  I  believe,  perhaps 
with  all,  in  the  early  stages  of  society ;  and,  on  the  other 
hand,  the  human  mind  has  not  yet  succeeeded,  as  already 
alluded  to,  in  drawing  a  distinct  line  between  that  relation  to 
which  the  word  mine  is  applicable  on  account  of  affection, 
duty,  etc.,  and  that  to  which  the  same  term  may  be  applied 
on  account  of  absolute  disposition  over  it.  Most  nations  have 
started  from  the  idea  that  the  child  is  bona  fide  property  of 
the  father,  to  be  sold  or  exposed  and  killed  according  to  his 
pleasure.  Esquimaux  children  were  offered  to  Captain  Back 
by  their  parents  for  a  needle  or  a  saw.  Again,  affection  itself 
must  soon  have  given  birth  to  the  idea  of  mine  and  thine. 
There  is  no  heart  so  cold,  no  intellect  so  dull,  which  is  not 
struck  at  once  by  the  force  of  the  term,  or  the  feeling  ex- 
pressed by  the  words,  "  my  child,"  "  thy  son."  Animals  have 
undoubtedly  this  feeling  too,  and,  for  a  time,  in  a  very  strong 
degree.  We  see  it  by  the  readiness  with  which  the  parent 
sacrifices  itself  for  its  offspring ;  but  the  feeling  vanishes  soon, 
and  the  brute  intellect  is  too  confined  to  develop  it  in  any 
high  degree.  Applied  to  things,  to  objects  of  the  inanimate 
world,  the  idea  must  present  itself  at  an  equally  early  period. 
The  father  has  to  provide  for  his  children  ;  the  absolute  neces- 
sity establishes  the  absolute  duty  to  do  it.  If  he  has  broken  off 
a  branch  of  bananas  for  himself  or  his  children,  and  some  one 
else  would  take  it  from  him,  he  would  answer  at  once,  in  the 
most  practical  and  most  philosophical  manner,  "The  bananas 
are  mine,  I  plucked  them."  The  title  is  proved  in  this  case 
in  the  most  forcible  manner  by  that  mode  by  which  we  prove, 
and  conclusively,  too,  so  many  elementary  positions  —  the 
exclusion  of  all  the  contraries,  "  To  whom  should  this  belong, 


no  THE  STATE. 

if  not  to  me  ?"  Has  he  not  exerted  himself  to  obtain  them  ? 
has  he  not,  by  his  industry,  established  already  a  closer  rela 
tion  between  them  and  himself,  than  any  one  else  ?  The 
same  is  the  case  with  his  arrow,  spear,  the  first  animals  he 
tamed,  the  first  plants  he  saved,  the  first  trap  he  made.  They 
wear  the  imprint  of  his  labor,  they  are  identified  with  himself' 
If  the  thing  to  be  appropriated  belonged  to  no  one,  to  whom 
can  it  possibly  belong,  if  not  to  him  who  took  pains  to  obtain 
it  ?  Man  continues  to  establish  thus  his  title  to  property 
every  day.  All  unappropriated  things,  for  instance,  the  fish 
in  the  ocean,  become  appropriated  as  soon  as  caught,  that  is, 
as  soon  as  placed  in  an  exclusive  relation  to  some  one.  The 
whale  is  the  property  of  no  one  until  the  harpoon  of  the 
hardy  whaler  has  wounded  it.  From  that  moment  it  is  his. 
Even  the  mere  chasing  would  establish,  though  no  legal  title, 
yet  a  socially  acknowledged  one,  and  it  would  be  considered 
very  unfair  among  whalers  if  others  were  to  interfere  in  the 
pursuit  of  this,  considered  already  an  appropriated  whale. 
This  right  of  property  by  assimilation  or  imprint  of  labor  or 
industry,  if  not  appropriated  before,  confers  certainly  a  strong 
title,  and  it  might  be  said  that  as  all  capital  is  accumulated 
labor,  labor  saved,  we  likewise  establish  our  title  to  property 
in  civilized  societies  if  we  buy  it  lawfully,  that  is,  if  we  give 
accumulated  labor  for  it.  So  strong  is  the  title  conferred  by 
labor  that  men  are  ever  unwilling  to  dislodge,  without  any 
consideration,  settlers  who  have  improved  the  soil  though  it 
did  not  belong  to  them,  and  on  which  they  have,  conse- 
quently, settled  unlawfully.  Many  legislatures  in  the  United 
States  and  other  countries  have  afforded  instances  of  this 
partial  acknowledgment  of  a  title  under  these  circumstances. 

VIII.  There  remain,  however,  various  important  questions 
yet  to  be  answered,  and  many  other  titles  to  property  yet  to 
be  examined. 

Why,  it  has  been  asked,  should  man  be  allowed  to  appro- 


'  See  Locke  on  Civil  Government,  chap.  v.  45,  et  seq. 


ORIGIN  OF  PROPERTY.  Ill 

priate  more  than  is  necessary  for  his  support  ?  We  ask,  what 
support  is  meant?  The  momentary  satisfying  of  his  hunger, 
by  shooting  a  deer,  plucking  a  fruit  ?  Is  he  allowed  to  shoot 
several  deer  and  dry  the  meat  for  the  winter?  Is  he  not 
allowed  to  cultivate  a  tree  which  shall  give  him  fruit  for  cer- 
tainty, so  that  he  may  not  be  exposed  again  to  hunger,  the  pain 
of  w^hich  he  knows  already?  May  he  not  cultivate  a  patch  of 
land  to  have  corn  for  his  children  ?  If  he  has  slain  a  buck  to 
satisfy  his  hunger,  is  he  allowed  to  appropriate  the  skin,  to 
himself  and  call  it  his  own  ?  If  the  industrious  fisherman 
sails  to  the  banks  of  Newfoundland  to  appropriate  to  himself 
the  unappropriated  codfish,  has  he  no  right  to  catch  as  many 
as  he  thinks  he  and  his  children  shall  want  for  the  whole  year? 
But  they  cannot  live  upon  codfish  alone ;  may  he  not  take  so 
many  codfish  as  to  exchange  part  of  them  for  other  food,  for 
clothing  ?  Does  supporting  his  family  not  include  the  send- 
ing of  his  children  to  school  ?  May  he  not  catch  some  more 
to  save  the  money  he  may  obtain  for  it,  that,  should  he  perish 
at  sea,  his  wife  and  children  may  not  suffer  from  want  or  be- 
come a  burden  to  others?  Where  does  the  meaning  of 
support  stop?  Why  should  it  apply  to  the  satisfying  of 
physical  wants  only  ?  There  are  wants  far  higher  than  these 
— the  wants  of  civilization.  We  want  accumulated  property; 
without  it,  no  ease;  without  ease,  no  leisure;  without  leisure, 
no  earnest  and  persevering  pursuit  of  knowledge,  no  high 
degree  of  national  civilization.^  Aristotle  already  lays  it  down 
as  the  basis  of  high  civilization,  to  be  free  and  have  leisure. 
Still  the  question  would  remain,  why  have  private  property  ? 
It  is  the  very  same  ease  which  is  promised  to  us  by  those  who 
recommend  to  us  a  system  of  common  property. 

IX.  Each  man  is  a  being  of  himself,  an  individual ;  his 
individuality  is  all-important.  He  has  a  natural  aversion  to 
being  absorbed  in  an  undefined  generality.    From  early  child- 


»  That  by  leisure  I  do  not  mean  idleness,  is  clear.  No  harder  working  men 
than  those  who  pursue  sciences ;  but  knowledge  must  sink,  where  every  one  has 
to  work  for  his  momentary  and  daily  support. 


112  THE  STATE. 

hood  man  feels  an  anxiety  to  be  a  distinct  individual,  to  ex- 
press it,  and  consequently  to  individualize  everything  around 
him.  ]\Ian  must  ever  represent  in  the  outward  world  that 
which  moves  his  inmost  soul,  the  inmost  agents  of  his  mind. 
Property  is  nothing  else  than  the  application  of  man's  indi- 
viduality to  external  things,  or  the  realization  and  manifesta- 
tion of  man's  individuality  in  the  material  world.  Man  cannot 
be,  never  was,  without  property,  without  Diinc  and  thine.  If 
he  could,  he  would  not  be  man.  In  all  stages  of  civilization, 
at  all  ages  of  his  life,  we  find  him  anxious  to  individualize 
things,  to  rescue  them  as  it  were  from  undefined  generality — 
to  appropriate.  It  is  a  desire  most  deeply  implanted  in  man. 
Children  will  call  a  certain  peach  on  the  tree  mine,  another 
thine,  without  the  least  reference  to  its  final  consumption. 
The  child  is  anxious  to  have  a  bed  in  the  garden  of  his  parent, 
merely  to  call  it  his  own.  When  children  look  at  flying  birds, 
at  passing  clouds,  they  are  apt  to  single  out  one  or  the  other 
and  call  it  mine,  yours,  etc.  No  complaint  of  the  poet  is  more 
melancholy  than  that  no  heavy  blade  fells  under  his  own 
sickle.  Children  in  houses  of  refuge  are  most  anxious  to 
have  a  little  box  of  their  own,  to  have  something  in  the  wide 
world  which  they  may  call  their  own.  The  most  abject  galley- 
slave  and  the  most  powerful  king  strive  equally  to  acquire 
some  property,  to  have  something  they  can  call  specifically 
their  own.  The  former  contrives  to  obtain  a  box  or  chest 
which  may  belong  to  him  exclusively ;  the  latter  saves  and 
buys  property.  And  why  should  this  anxiety  have  been  so 
deeply  implanted  in  the  human  breast?  Because,  as  will  be 
shown,  private  property  is  the  most  powerful  agent  in  the 
promotion  of  civilization — an  agent  which  has  this  striking 
peculiarity,  that  while  it  originates  with  man's  individuality,  it 
is  at  the  same  time  the  surest  and  firmest  bond  of  society. 

Whatever  is  absolutely  necessary  for  man's  physical  or  intel- 
lectual existence.  Providence  has  accompanied  with  pleasure. 
It  is  a  pleasure  to  eat  when  hungry,  to  drink  when  thirsty,  to 
sleep  when  tired,  to  awake  after  a  long  sleep,  to  love  and  care 
for  one's  children,  to  speak  and  commune  with  others  after 


INDIVIDUAL  PROPERTY. 


113 


long  solitude;  the  mere  utterance  delights  the  child.  It  is  a 
pleasure  to  meditate,  to  analyze  and  combine ;  a  pleasure  of 
itself  to  produce,  to  work  with  effect;  it  is  a  pleasure  to  assist 
others,  a  pleasure  to  accumulate  property — to  individualize 
things  and  to  place  them  in  a  closer  relation  to  yourself  The 
first  field  you  buy  makes  you  feel  happy,  not  because  it  will 
give  you  more  or  better  fruit  than  you  have  enjoyed  before, 
but  because  it  is  yours,  just  as  the  child  is  delighted  to  call  a 
dog  or  bird  its  own.  The  human  heart  is  delighted  at  finding 
its  individuality  reflected  in  the  external  world.  The  deep- 
rooted  and  noble  love  of  independence  is  founded  upon  nothing 
else  but  the  original  anxiety  of  constituting  a  distinctly  sepa- 
rate individual  and  being  acknowledged  as  such.  And  as 
unrestrained  pleasure  in  eating  or  drinking  degenerates  into 
gluttony  or  intemperance,  so  does  the  immoderate  desire  of 
appropriation  degenerate  into  avarice.  There  was  good  reason 
for  placing  avarice  as  the  second  of  the  cardinal  vices,  because 
man  has  so  strong  a  temptation  to  fall  into  it.  All  vices  that 
beset  us  most  are  those  which  consist  in  a  degenerate  excess 
of  the  most  natural  and,  therefore,  most  deeply  implanted 
principles  of  our  soul. 

X.  The  process  of  the  individualization  of  things,  or  effect- 
ing a  relation  between  man  and  things,  is  various.  It  may 
be  effected — 

by  production — if  I  make  a  boat,  a  book ; 

by  appropriation — if  I  gather  fruits,  or  take  fish  ; 

by  occupancy — if  I  declare  things  mine  and  am  able  to 
maintain  my  declaration, 

a.  by  force  (conquest,  see  further  below) ; 

b.  by  law ;  and  here,  again, 

by  pre-emption, 

by  positive  declaration  of  law,  etc, ; 
by  mixed  production — if  I  tame  animals,  cultivate  the 
ground ; 

by  conveyance  of  the  right  of  others — by  grant,  by  sale ; 
etc.,  etc. 

8 


114 


THE  STATE. 


It  is  by  no  means  said  that  these  titles  are  absolute,  or  that 
they  may  not  be  regulated  or  interfered  with  by  law.  Many 
civilized  societies  prohibit  too  large  an  accumulation  of  prop- 
erty and  too  multiplied  a  division  of  real  estate.  Nor  is  it 
said  that  there  is  not  somewhere  a  power  which  can  change 
it.  I  do  not  mean  to  convey  the  idea  that  all  sorts  of  titles 
are  unimpeachable.  If  a  country  is  really  over-peopled,  and 
if  they  cannot  in  any  other  way  obtain  additional  land,  al- 
though it  may  be  unsettled,  they  are  perfectly  right  in  con- 
quering it.  Who  would  deny  it?  All  I  maintain  is  the  prin- 
ciple that  man  must  live  with  individual  property.  It  is  for 
natural  and  positive  law  to  inquire  fully  into  the  nature  of  the 
various  titles,  and  all  their  bearings  upon  society. 

XI.  The  idea  of  property,  that  is,  of  a  peculiar  relation 
of  man  to  things  without  him — a  relation  distinguished  by  a 
degree  of  exclusiveness  and  by  peculiar  reference  to  him, 
which  involves  the  power  over  it,  of  disposing  of  it — grows 
out  of  the  very  nature  of  man,  and,  consequently,  we  find 
him  at  no  stage  without  property.  We  do  not,  indeed,  meet 
with  landed  property  in  all  tribes  ;  but  the  rudest  islander  of 
the  Indian  Archipelago,  the  lowest  inhabitant  of  the  Aleutian 
group,  will  call  the  fish-hook  he  made,  the  canoe  he  bartered 
for,  the  dress  which  he  prepared  of  skins  obtained  by  himself, 
his  own,  and  consider  every  attempt  to  d-ispossess  him  of  these 
articles  as  a  gross  outrage.  Nor  has  there  ever  existed  a 
society  without  property.  We  have  seen  trials  made  of  estab- 
lishing societies  within  which  no  individual  property  on  a 
large  scale  was  to  be  acknowledged,  e.g.  that  of  Mr.  Owen  in 
New  Harmony,  or  that  of  the  St.-Simonists  in  France,  Some 
have  succeeded  in  a  degree,  as  Mr.  Rapp  at  Harmony ;  so 
does  the  sect  commonly  called  Shakers  allow  of  no  individual 
landed  property,  as  many  Catholic  monastic  communities  do. 
But,  first,  their  resignation  of  private  property  never  extended 
much  beyond  what  is  generally  called  real  estate;  and,  sec- 
ondly, what  more  did  the  individual,  in  resigning,  do  than 
give  up  his  property  to  the  community  he  joins?     They  did 


INDIVIDUAL  PROPERTY.  ne 

by  no  means  abandon  all  idea  of  property,  nor  could  they. 
If  St.  Francis  prohibits  his  order  from  holding  property,  he 
wishes  them  nevertheless  to  hold  churches,  convents,  etc. ; 
and  if  he  enjoins  them  to  beg  for  the  daily  support,  he  thereby 
acknowledges  the  right  of  property  in  the  donors  of  the  alms. 
Suppose  even  that  a  whole  nation  could  be  induced  to 
adopt  the  plan  of  Mr.  Owen — and  a  most  lamentable  event  it 
would  be,  because  it  would  be  reducing  society  to  a  chaos,  out 
of  which  it  needs  must  struggle  to  elevate  itself,  the  very  next 
moment  after  its  reduction  to  it — would  not  that  nation  insist 
upon  its  joint  property  against  the  claims  which  another 
nation  might  set  up?  In  a  word,  can  we  for  a  moment  pos- 
sibly imagine  mankind  without  property?  All  that  fanciful 
minds  have  dreamed  of  a  supposed  golden  age  extends  no 
farther  than  to  very  confined  limits.  Brjng  yourself  for  a 
moment  to  imagine  the  idea  of  property  erased  from  the 
human  mind;  what  a  state!  Nothing  but  brute  force  to 
support  each  single  individual — a  pack  of  hungry  wolves. 

XII.  It  would  not  be  much  better  were  we  to  acknowledge 
the  right  of  property  in  general,  while  we  annihilated  indi- 
vidual property  within  the  limits  of  a  state,  nation,  or  what- 
ever other  society.  The  personality  of  man,  the  fact  that 
every  human  being  is,  and  of  right  ought  to  be,  a  moral  being 
of  himself,  requires,  generally  speaking,  private  property.  Men 
are  not  destined  to  become,  after  being  united  into  a  society, 
like  a  mass  of  liquid,  every  drop  of  which  loses  all  character  of 
individuality.  Man  is,  and  forever  shall  be,  an  individual.  His 
goodness,  his  greatness,  his  activity,  his  energy  and  industry— 
everything  good  and  characteristic  of  him  as  man  is  connected 
with  the  idea  of  individual  property,  if  we  include  in  this  term, 
as  we  ought  to  do,  the  certainty  of  securing  individually  the 
benefit  of  individual  exertion,  of  labor.  Depriving  man  of  indi- 
vidual property  would  amount  to  depriving  him  of  half  his 
humanity.  Man  strives,  and  laudably  so,  to  see  his  individual 
industry,  skill,  and  perseverance  palpably,  visibly,  bodily  repre- 
sented in  gathered  property,  this  "  nourisher  of  mankind,  in- 


Il6  THE  STATE. 

centive  of  industry,  and  cement  of  human  society."  (Sir  James 
Mackintosh's  speech  in  the  Commons  on  the  Reform  bill.) 
Property  is  intimately  connected  with  the  idea  of  the  family 
as  a  separate  body,  and  on  this  account,  as  well  as  on  many 
others,  with  the  whole  province  of  civilization.  Without  a 
progressive  advance  of  industry  there  is  no  civilization,  though 
industry  alone  does  not  constitute  civilization ;  and  man's 
great  destiny  is  civilization. 

XIII.  That  primary  agent  within  man  which  we  may  call 
the  desire  of  action,  of  which  I  shall  speak  more  fully  by- 
and-by,  when  treatingof  power,  impels  him  likewise  to  obtain 
property,  as  on  the  other  hand,  as  we  have  seen  already^ 
property  gives  impulse  to  this  activity.  Whatever  point  of 
view  we  may  take^we  find  that  individual  property  is  natural 
to  man,  connected  with  the  inmost  principles  of  his  soul,  and 
necessary  for  him  as  a  social  being.  It  is  not  to  be  ascribed, 
therefore,  solely  and  originally  to  covetousness,  Covetous- 
ness  is  a  vitiated  excess  of  an  agent  or  principle  originally 
good  or  innocent.  The  desire  of  property  springs  so  directly 
from  the  nature  of  the  human  soul  that  it  is  universal,  and,  it 
being  universal,  its  vitiated  state  is  also  of  frequent  occur- 
rence. We  see  the  same  with  respect  to  incontinency.  The 
fact  that  covetousness  is  a  widely-diffused  vice,  has  induced 
many  people,  however,  to  consider  property  altogether  as 
having  its  origin  in  a  vicious  disposition  of  man.  This  view, 
together  with  the  erroneous  conception  of  a  state  of  nature,  in 
which  man  has  been  supposed  to  have  lived  before  a  division 
of  property  had  been  made  (instead  of  considering  property 
as  having  grown  inseparably  with  man),  of  the  principle  of 
mutual  love,  taught  by  Christianity,  and  the  community  of 
property,  which  in  a  considerable  degree  may  have  existed 
among  the  first  Christians  as  long  as  they  remained  a  small 
sect  and  an  oppressed  church,  induced  the  early  doctors  of 
the  church  to  consider  the  division  of  property,  though  not 
any  longer  iniquitous,  yet  as  having  arisen  from  the  sin  of 
man,  and  as  being  now  necessary  only  in  consequence  of  sm's 


PROPERTY  WAS  NEVER   CEAERAL. 


117 


continuance.  St.  Ambrose,  in  chap.  xii.  Luc,  St.  Chrysostom, 
Horn.  I  in  Cor.,  St.  Basil,  Serm.,  all  declare  that  no  one  should 
say,  this  is  mine,  this  is  thine,  because  everything  is  common 
(meaning  of  course  among  Christians).  St.  Thomas  Aquinas 
says,  Divisio  bonorum  non  est  iniqua,  sed  iniquitatis  occasione 
et  ad  iniquitatem  avertendam  sit  facta."  The  assumption  of  a 
division  of  property,  as  having  taken  place  at  some  definite 
time,  does  not  belong  to  the  early  Christians  alone.  The  an- 
cient Greek  and  Roman  philosophers  speak  of  it ;  nor  can  we 
be  surprised  at  this  view.  It  is  a  common  error  to  ascribe 
general  phenomena,  presenting  themselves  to  the  eye  of  the 
observer  as  a  definite  thing,  to  an  origin  as  definite,  to  specific 
general  actions  and  agreements  of  society,  instead  of  search- 
ing for  their  origin  in  the  gradual  but  steady  and  natural 
operation  of  principles  founded  within  us,  or  conditions  which 
are  the  necessary  effects  of  the  relation  of  our  nature  to  ex- 
ternal and  given  circumstances.  The  origin  of  languages, 
of  governments,  of  religions,  has  likewise  been  ascribed  to 
arbitrary,  sometimes  fraudulent,  agreements  or  inventions  of 
individuals. 

The  fallacy  in  the  case  before  us  is  great.  It  was  first 
assumed  that  property  was  at  some  period  or  other  divided. 
If  so,  it  is  clear  that  those  who  had  the  right  to  divide  must 
collectively  have  had  possession  of  the  whole  —  a  state  of 
things  which  was  considered  to  be  much  purer.  An  errone- 
ous interpretation  of  a  passage  in  the  Bible  (Gen.  i.  28),  by 
which  man  is  declared  to  be  ruler  over  all  the  earth,  contrib- 
uted to  confirm  this  mistaken  view.  Things  which  are  not 
owned  by  any  individual  do  not  on  that  account  belong  to 
all.^     What  meaning  would  the  word  property  have,  if  ap- 


»  *  Why  did  men  never  declare  the  stars  common  property?  They  are  things, 
too,  not  owned  by  any  one.  Because  all  know  that  we  cannot  exercise  con- 
trol over  them.  The  same  with  the  birds  on  the  islets  of  the  Pacific.  They 
were  born  and  died  unseen,  unknown,  uncontrolled,  and  were  as  little  common 
property  as  the  stars.  But  does  a  thing  become  common  property  only  the  mo- 
ment that  an  individual  seizes  upon  it,  that  is,  at  the  moment  when  it  ceases  to  be 
common  property  ?     This  is  absurd. 


Il8  THE  STATE. 

plied  to  things  which  are  out  of  the  reach  of  man  and  have  for- 
ever remained  so?  Have  the  millions  of  birds  on  the  islands 
in  the  Pacific,  which  have  lived  and  died  unseen  by  human 
eye,  been  the  property  of  any  one  individual  or  society  ?  The 
passage  in  the  Bible  means  tlxat  man  shall  be  the  ruler,  shall, 
wherever  he  goes,  subject  the  creature  beneath  him  and  make 
it  his  own ;  it  means  his  inherent  right  to  obtain,  acquire, 
produce,  individual  property,  and  the  superiority  of  his  mind 
which  will  aid  him  in  doing  so.  The  uncaught  fish  in  the 
ocean  does  not  belong  to  all ;  it  belongs  to  no  one.  Else  it 
could  not  possibly  become  the  property  of  him  who  catches 
it,  at  the  moment  he  does  so.  Besides,  the  argument  would 
apply  to  existing  things  only ;  how  is  it  with  those  which 
man  produces  ?  We  have  a  poem  entitled  the  Division  of  the 
Earth,  but  I  have  seen  nowhere  such  an  event  recorded  in 
history.  "  To  suppose  a  state  of  man  prior  to  the  existence 
of  any  notions  of  separate  property,  when  all  things  were 
common,  and  when  men,  throughout  the  world,  lived  without 
law  or  government,  in  innocence  and  simplicity,  is  a  mere 
dream  of  the  imagination."  (Kent's  Comment.,  part  v.  lect. 
xxxiv.)  Modern  writers  have  generally  followed  this  idea  of 
original  common  property,  confounding  non-appropriation 
with  common  property,  with  more  or  less  acuteness,  from 
Hugo  Grotius  and  Puffendorf  down  to  Blackstone,  who  but 
follows  the  two  first-named  writers.  Chancellor  Kent,  in  the 
lecture  just  quoted,  elevates  himself  to  a  far  higher  view;  I 
therefore  recommend  in  particular  its  perusal.' 

XIV.  If  I  say  that  individual  property  is  natural  to  man,  I 
do  not  wish  to  express  the  idea  that  I  am  opposed  to  all  com- 
binations of  property.  On  the  contrary,  I  do  believe  that 
institutions   in  which  persons  of  very  limited  property,   de- 

'  Justin.,  lib.  xliii. ;  Hugo  Grotius,  De  Jure  Belli  ac  Pads,  lib.  ii.  cap.  iii. ;  Puf- 
fendorf, Droit  de  la  Nature,  ed.  Barbeyrac,  liv.  iv.,  c.  iii.  iv.,  v.,  et  seq.;  Blackstone^ 
ii.,  p.  I,  etseq. — Hugo  Grotius,  always  to  be  read  with  advantage,  is  no  less  so  in 
the  above  book,  and  I  advise  the  student  to  reflect  well  on  it,  though  I  differ  from 
that  great  writer  on  the  original  principle. 


PIRACY  CONSIDERED  HONORABLE.  119 

prived  of  family  connections  and  advanced  in  life,  should  join 
their  scanty  means,  in  order  to  secure  greater  comfort,  and 
perhaps  even  a  more  proper  sphere  of  activity  might  prove 
highly  advantageous. 

On  the  other  hand,  it  might  be  urged  that,  if  property  is 
natural  to  man,  that  is,  consentaneous  to  the  principles  of  his 
soul,  how  is  it  that  robbery  and  piracy  are  considered  an 
honorable  trade  with  nearly  all,  perhaps  with  all,  early  nations, 
and  if  not  absolutely  honorable,  still  an  occupation  at  which 
the  general  feeling  of  society  does  not  seem  to  revolt  ?  When 
Telemachus  visited  Nestor,  to  obtain  some  information  re- 
specting his  father,  his  aged  host,  after  having  refreshed  his 
guest  and  prayed  with  him,  says,  "And  now  it  may  be  meet 
to  inquire  and  ask  who  the  strangers  are,  after  they  have 
refreshed  themselves.  Strangers,  who  are  you  ?  From  whence 
do  you  navigate  the  watery  way  ?  Is  it  for  settled  purpose, 
or  do  you  roam  at  hazard,  like  robbers  over  the  sea,  who 
wander  wagering  their  own  lives,  bearing  evil  to  others  ?" 
(Odyssey,  iii.  70,  et  seq.)  Homer  does  not  represent  those 
who  were  asked  as  spurning  this  question ;  those  who  asked 
did  not  mean  to  offend.'    So  we  have  only  to  look  at  the  mid- 


'  The  following  passage  from  Thucydides,  at  the  beginning  of  his  first  book, 
is  interesting  respecting  the  above  subject : 

"  The  Hellenes  formerly,  as  -well  as  those  barbarians  who  lived  upon  the  coast 
of  the  continent  or  occupied  the  islands,  when  they  had  better  learned  how  to 
pass  to  and  fro  in  their  vessels,  took  up  the  business  of  piracy  under  the  command 
of  persons  of  the  greatest  ability  among  them,  for  the  sake  of  enriching  such 
adventurers  and  supporting  their  poor.  They  landed  and  plundered  by  surprise 
unfortified  places  and  scattered  villages,  and  from  hence  they  principally  gained 
a  subsistence.  This  was  by  no  means  at  that  time  an  employment  of  reproach, 
but  rather  brought  them  somewhat  of  reputation.  Some  people  of  the  continent 
are  even  to  this  day  a  proof  of  this,  who  still  attribute  honor  to  such  exploits  if 
handsomely  performed ;  so  also  are  the  ancient  poets,  in  whom  those  that  sail 
along  the  coasts  are  everywhere  equally  accosted  with  this  question,  whether 
they  are  pirates ;  as  if  neither  they  to  whom  the  question  was  put  would  disown 
their  employment,  nor  they  who  are  desirous  to  be  informed  would  reproach  them 
with  it.  The  people  of  the  continent  also  used  to  exercise  robberies  upon  one 
another,  and  to  this  very  day  many  people  of  Hellas  are  supported  by  the  same 
practices:  for  instance,  the  Ozolian  Locrians,  and  .(Etolians,  and  Acarnanians, 
and  their  neighbors  on  the  continent ;  and  the  custom  of  wearing  their  weapons, 


I20  THE  STATE. 

die  ages,  to  find  the  trade  of  piracy  and  land-robbery  held 
in  honor  for  centuries.  But  I  have  not  said  that,  because  the 
idea  of  property  is  natural  to  man,  it  represents  itself  at  once 
perfect  to  his  mind  in  all  its  bearing ;  on  the  contrary,  we  shall 
see  farther  below  that  man,  a  rational  being  and  destined  for 
progressive  civilization,  has  to  develop  every  institution  which 
is  natural  to  him.  Was  not  the  holding  of  robbery  in  honor 
a  distorted  view  which  people  took  of  the  means  of  acquiring 
property,  as  if  boldness,  danger,  adventure,  were  fit  employ- 
ment for  freemen,  but  toiling  for  it  fit  for  bondmen  only,  rather 
than  a  denial  of  property?  They  differed  from  us  respecting 
the  means,  not  the  matter  itself;  for  had  they  not  had  the  idea 
of  property,  or  felt  the  impetus  of  acquiring  it,  why  should 
they  have  incurred  dangers  to  do  so  ?  They  believed  power 
or  courage  sufficient  to  establish  a  title,  not  that  everything 
belonged  promiscuously  to  every  one. 

XV.  The  subject  which  occupies  our  present  attention  re- 
quires that.  I  should  anticipate  a  few  remarks  on  a  point 
which  will  presently  engage  us  more  fully,  and  to  which  I 
have  had  occasion  to  allude  several  times.  The  right  of  prop- 
erty has  been  but  gradually  recognized ;  each  step  in  the 
way  of  civilization  has  obliged  men  to  acknowledge  it  in  one 
more  of  its  many  ramifications  and  peculiar  forms.  Still,  I 
do  not  say,  ^^ yet  property  is  natural,"  but  "therefore  property  is 
natural  to  man."  Everything  that  characterizes  man  as  man 
appears  clearer  and  more  distinct  with  each  advancing  stage 
of  civilization,  the  true  aim,  not  the  artificial  end,  of  human 
society.  We  must  lay  it  down  as  a  rule,  that  whatever  is 
truly  natural  to  man,  that  is,  essential  to  and  characteristic  of 
him,  unfolds  itself  more  perspicuously  with  the  progress  of 
civilization,  and  whatever  shows  itself  in  a  steady  gradation 
more  perspicuously  with  the  progress  of  civilization,  is  truly 


introduced  by  this  old  life  of  rapine,  is  still  retained  among  them."  So  far  Thu- 
cydides.  Piracy  was  considered  peculiarly  honorable  by  many  tribes  around  the 
Baltic  or  on  the  Northern  Ocean  in  the  middle  ages,  for  instance,  by  the  North- 
men. 


COPYRIGHT.  121 

natural  to  man.  The  leaf  is  not  less  natural  to  the  tree  than 
the  root,  though  it  only  shows  itself  under  the  influence  of 
vernal  sunshine.  Much  confusion  has  arisen  from  mistaking 
man's  sav^age  or  rude  state  for  his  natural  state,  in  consequence 
of  which  man's  civilized  state  necessarily  appeared  as  an  arti- 
ficial one,  owing  to  the  looseness  with  which  the  word  nature 
has  been  used,  applying  it  in  different  meanings  to  plants, 
animals,  etc.,  or  to  the  character  essential  to  them,  or,  again, 
to  man  differing  by  his  reason  from  them.  The  next  erroneous 
step  was  that,  since  the  civilized  state  of  man  was  considered 
an  artificial  one,  all  rights  which  were  gradually  unfolded  as 
it  were  by  civilization  appeared  to  be  made  and  not  acknowl- 
edged by  society.  We  have  a  striking  instance  in  the  right 
of  property.  In  some  limited  form  it  was  acknowledged  at 
an  early  period.  Gradually  it  became  more  clearly  defined, 
more  distinctly  recognized  in  the  various  spheres  of  human 
activity  and  enterprise,  spheres  to  which  man  could  elevate 
himself  only  by  civilization.  The  law  of  individual  inherit- 
ance has  developed  itself  but  very  slowly  with  all  nations,  as 
the  legal  history  of  every  civilized  nation  shows — for  instance, 
that  of  the  Romans  or  Teutonic  tribes.  Yet  we  find  it  with 
every  civilized  nation ;  and  are  we  not  bound  on  this  account 
alone,  even  if  there  were  not  other  powerful  reasons,  to  ac- 
knowledge it  as  natural  to  man  ?  If  it  is  artificial,  invented, 
then  who  invented  it  ?  Who  had  or  has  the  gigantic  power 
to  force  all  mankind  into  a  course  contrary  to  nature  ?  What 
is  there  in  existence  that  can  long  and  continually  remain  in 
a  state  against  its  nature  ? 

We  are  surprised  at  the  undefined  state  of  property  in  those 
early  stages  of  society,  when  piracy  is  considered  a  noble 
employment,  fit  to  be  extolled  by  bards,  but  we  must  not 
forget  that  there  are  rights  of  property  to  this  day  unacknowl- 
edged, which  future  generations  will  consider  as  sacred  as  we 
do  those  acknowledged  centuries  ago.  Because  there  was  no 
copyright  in  early  times — because  there  were  no  books,  or 
books  did  not  yield  any  profit  to  make  copyright  worth  any- 
thing— it  is  believed  by  many  to  this  day  that  copy-right  is 


122  THE  STATE. 

an  invented  thing,  and  held  as  a  grant  bestowed  by  the  mere 
grace  and  pleasure  of  society ;  while,  on  the  contrary,  the 
right  of  property  in  a  book  seems  to  be  clearer  and  more 
easily  to  be  deduced  from  absolute  principle  than  any  other. 
I^  is  the  title  of  actual  production  and  of  preoccupancy.  If  a 
canoe  is  mine  because  I  made  it,  shall  not  that  be  mine 
which  I  actually  created — a  composition  ?  It  has  been  as- 
serted that  the  author  owes  his  ideas  to  society,  therefore  he 
has  no  particular  right  in  them.  Does  the  agriculturist  not 
owe  his  ideas  to  society,  present  and  past  ?  Could  he  get 
a  price  for  his  produce  except  by  society  ?  But  a  work  of 
compilation,  it  is  objected,  is  not  creation  or  invention.  In  the 
form  in  which  it  is  presented,  it  is  invention.  The  ideas  thus 
connected,  though  they  are,  separately,  common  stock,  like 
the  wild  pigeons  flying  over  my  farm,  are  the  compiler's,  are 
preoccupied  by  him,  and  belong  to  him  in  their  present  order 
and  arrangement.  The  chief  difficulty  has  arisen  from  the 
fact  that  ideas  thus  treated,  thrown  into  a  book,  had  for  a  long 
time  no  moneyed  value  to  be  expressed  numerically,  and  that 
copyright  has  therefore  not  the  strength  of  antiquity  on  its 
side.  Yet  observe  how  matters  still  stand  with  regard  to  this 
right.  Prussia  has  passed,  only  last  year  (1837),  an  extensive 
and  well-grounded  copyright  law.'  In  most  countries,  thea- 
tres may  make  whatever  money  they  can  by  the  performance 
of  a  play,  without  permission  of  the  inventor ;  that  is,  they 
may  use  my  boat  to  earn  as  much  ferry-toll  as  they  can.  In 
the  United  States  and  in  England,  any  man  may  make  an 
abridgment  of  the  work  of  another;  that  is,  any  man  has  a 
right  to  cut  the  ears  of  my  corn,  provided  he  leaves  the  stalks 
untouched — to  drink  my  wine,  provided  he  leaves  me  the 


'  By  this  law  of  June  1 1,  1S37,  authors  of  works  of  literature,  the  sciences  and 
arts,  are  secured  an  exclusive  privilege  of  publishing,  multiplying,  and  copying 
them  during  the  term  of  their  lives,  and  the  same  privilege  is  extended  to  their 
representatives  for  a  period  of  thirty  years  from  the  day  of  their  deaths.  The 
whole  law,  altogether  well  digested,  is  applicable  to  works  published  in  a  foreign 
state — in  whatever  language — in  so  far  as  the  rights  established  in  that  state  are 
conferred  equally  by  the  laws  of  the  said  state  to  works  published  in  Prussia. 


COPYRIGHT.  123 

casks.'  Those  nations  who  speak  the  same  language,  as  the 
English  and  Americans,  French  and  Belgians,  and  several  of 
the  German  States  (with  the  exception  of  Prussia  and  proba- 
bly some  others),  have  not  yet  international  copyright, 
though  they  acknowledge  other  property  of  each  other's 
citizens.  It  strikes  every  one,  nowadays,  as  very  barbarous, 
that  in  former  times  commodities  belonging  »to  any  foreign 
nation  were  considered  as  good  prize,  yet  we  allow  robbing 
in  the  shape  of  reprint,  to  the  manifest  injury  of  the  author. 
The  flour  raised  in  Pennsylvania  has  full  value  in  Europe,  and 
is  acknowledged  as  private  property,  but  the  composition  of  a 
book,  the  production  of  which  has  cost  far  more  pains,  is  not 
considered  as  private  property.  A  regular  piratical  trade  is 
carried  on  in  Austria,  and  by  Austria  with  other  countries,  in 
books  published  in  other  parts  of  Germany.  It  was  an  ill- 
chosen  expression  in  the  British  acts  relating  to  copyright,  that 
they  were  passed  for  "the  further  encouragement  of  learning." 
The  legislature  had,  in  this  case,  nothing  to  do  with  that  sub- 
ject, and  Sergeant  Talfourd,  in  bringing  his  new  bill  into  the 
house,  justly  said  that  it  was  for  "the  further  justice  to  learning." 
I  do  not  mean  to  say  that  perpetual  copyright  is  absolutely 
necessary  according  to  natural  justice.  The  sovereign  action 
of  society  can  regulate  the  tenure  of  this  species  of  property 
as  well  as  any  other;  though  the  same  learned  gentleman 
states  that  '*  perpetual  copyright  was  never  disputed  until 
literature  had  received  a  fatal  present  in  the  first  act  of  parlia- 
ment on  the  subject,  passed  in  1709."^  It  seems  very  clear 
to  me  that  the  shortest  term  for  which  copyright  ought  to 
be  secured  by  law  is  the  life  of  the  author  and  his  next  heirs, 
if  both  are  not  less  than  sixty  years,  the  average  time  of  two 
generations  ;  but  I  strongly  incline  to  believe  that  a  century 


'  Soon  after  Mr.  Washington  Irving  had  issued  his  Life  of  Columbus,  his  pub- 
lisher was  obliged  to  give  notice  that  the  author,  being  informed  that  some  un- 
authorized person  intended  to  publish  an  abridgment,  had  himself  engaged  in 
making  one. 

*  Speech  of  Sergeant  Talfourd  in  the  Commons,  May  i8,  1837 — able  as  every- 
thing  that  comes  from  that  distinguished  poet  and  lawyer. 


124 


THE  STATE. 


would  be  a  proper  term,  and  for  the  benefit  both  of  the  com- 
munity and  the  author,  if  perpetual  copyright  be  not  adopted, 
which  may  offer  objections,  not  to  be  discussed  here.^ 

XVI.  Though  men,  when  as  yet  but  hunters,  fishermen,  or 
nomads,  cannot  live  without  some  property,  the  first  great 
step  takes  place  when  man  passes  from  the  hunting  or  roam- 
ing life  to  that  of  agriculture.  So  long  as  there  is  no  indi- 
vidual property  among  the  agriculturists,  so  long  is  the  ground 
but  poorly  tilled.  Witness  some  Indian  tribes.  And  so  soon 
as  there  is  a  real  desire  to  till  the  ground,  so  soon  does  man 
revolt  at  the  idea  of  laboring  for  the  indolent.  If  he  were 
forced  to  do  it,  degradation  would  be  the  necessary  conse- 
quence. Who  would  be  on  a  par  with  the  inert  and  inefficient? 
Idleness,  with  its  concomitants,  vice  and  crime,  must  follow. 
Mr.  O'Connell,  in  his  speech  already  referred  to,  singles  out 
the  legal  incapacity  of  holding  property  as  one  of  the  two 
main  causes  of  crime  in  Ireland.^     Let  us  not  be  told  that 


I  The  right  of  international  copyright  is  considered  by  some  with  a  view  to 
profit  only,  that  is,  as  it  strikes  me,  in  a  piratical  point  of  view.  As  it  is  well  to 
see  the  arguments  on  both  sides,  I  would  refer  the  student  to  a  publication  of  Mr. 
Nicklin,  of  Philadelphia,  against  the  proposed  international  copyright  between 
the  United  States  and  England.  [Since  the  author  wrote,  international  copy- 
right has  been  greatly  extended  in  Europe.] 

*  On  April  28,  1837,  in  the  British  Commons,  on  the  Irish  Poor-Law  Bill.  He 
said  "  I  need  not  go  far  back.  It  is  unnecessary  for  me  to  go  farther  back  than 
the  last  century  and  a  half;  and,  looking  at  that,  no  one  can  be  surprised  to  find 
Ireland  in  the  state  that  she  is  in.  I  allude  merely  to  two  heads  of  those  which  are 
called  the  penal  laws.  By  two  distinct  branches  of  those  laws,  ignorance  was 
enforced  by  act  of  Parliament  and  poverty  was  enacted.  Such  were  the  effects  of 
the  penal  laws.  It  vs^as  enacted  that  no  Roman  Catholic  should  teach  or  have  a 
school  in  Ireland.  Such  instruction  of  youth  was  prohibited.  No  Roman  Catholic 
could  be  an  usher  in  a  Protestant  school ;  it  was  an  offence  punishable  by  confine- 
ment until  banishment.  To  teach  a  Catholic  child  was  a  felony  punishable  by 
death.  The  Catholics  were  prohibited  from  being  educated.  For  any  child  re- 
ceiving instruction,  there  was  a  penalty  of  ;^io  a  day,  and  when  the  penalty  was 
two  or  three  times  incurred,  then  the  parties  were  subjected  to  a  prczmunire—ihe 
forfeiture  of  goods  and  chattels.  To  send  a  child  out  of  Ireland  to  be  educated  was 
a  similar  offence ;  to  send  it  subsistence  from  Ireland  was  subjected  to  the  same 
forfeiture;  and,  what  was  still  more  violent  and  unjust,  even  the  child  incurred 


AGRICULTURE. 


125 


we  see  the  contrary  in  those  societies  already  mentioned,  the 
Shakers  and  that  founded  by  Mr,  Rapp.  They  live  as  a  com- 
munity contradistinguished  from  all  who  surround  them,  and 
enjoy  the  benefit  of  the  general  civilization  brought  about  by 
the  division  of  property  in  their  whole  nation.  So  may  a 
family  live  very  peaceably  without  ever  calling  in  the  protec- 
tion of  the  law,  or  ever  hearing  of  it,  but  that  they  can  live  so 
quietly,  and  do  live  so  amicably,  is  nevertheless  the  effect  of 
law  and  justice.  Without  property,  society  would  never  have 
risen  so  high  that  those  communities  now  may  live  so  peace- 
ably and  have  so  civilized  intercourse  with  one  another. 

Property  now  assumes  a  more  striking  and  a  more  elevated 
character.  The  progress  of  civilization  is  intimately  connected 
with  the  division  of  the  soil  and  hereditary  property,  as  with 
agricultural  pursuits  altogether.  For  the  other  branches  of 
industry  cannot  be  cultivated  if  men  have  not  previously 
become  tillers  of  the  soil.  Civilization,  moreover,  requires 
increased  population,  and  the  former  likewise  promotes  the 
latter ;  but  the  human  species  cannot  multiply  to  any  great 
extent    unless    supported    by  agriculture.^     Property,  again, 


a  forfeiture.  By  these  laws  there  was  encouragement  given  to  ignorance,  and  a 
prohibition  imposed  upon  knowledge.  I  am  not  now  to  be  told  that  these  laws 
were  part  of  ancient  history  :  they  were  in  full  force  when  I  was  born.  Another 
part  of  this  code  of  laws  prohibited  the  acquisition  of  property.  No  Roman 
Catholic  could  acquire  property.  He  might,  indeed,  acquire  it;  but  if  he  did, so, 
any  Protestant  had  a  right  to  come  into  a  court  of  equity  and  say,  '  Such  a  man 
has,  I  know,  purchased  an  estate — such  a  man  is  a  Roman  Catholic ;  give  me  his 
estate ;'  and  it  would  be  given  to  him.  To  take  a  lease  beyond  thirty-one  years 
was  prohibited ;  and  even  if  within  thirty-one  years,  and  the  tenant  by  his  in- 
dustry made  the  land  one-third  in  value  above  the  rent  he  paid  for  if,  it  could 
be  transferred  to  a  Protestant.  These  were  laws  that  were  in  force  for  a  full 
century.  For  a  full  century  we  had  laws  requiring  the  people  to  be  ignorant  and 
punishing  them  for  being  industrious  —  laws  that  declared  the  acquisition  of 
property  criminal,  and  subjected  it  to  forfeiture.  For  one  century  ignorance  and 
poverty  were  enacted  by  law  as  only  fit  for  the  Irish  people.  The  consequences 
of  a  system  of  that  kind  are  still  felt."- — The  speech  contains  some  very  interest- 
ing agricultural  statistics  comparing  Ireland  and  England. 

'  Cuvier,  RSgne  Animal,  vol.  i.  p.  78,  Paris  edit.,  1827.  The  ancients  were 
well  acquainted  with  the  fact  that  the  human  species  does  but  slowly  increase 
while  in  a  state  of  barbarism.     "  As  it  seems  to  me,"  says  Herodotus,  i.  58,  "  the 


126  THE  STATE. 

must  be  protected  against  intruders  as  well  as  invaders ;  this, 
too,  leads  men  to  resort  to  mutual  support,  to  live  socially 
united.  I  speak  now  of  a  state  of  mankind  when  they  have 
so  far  increased  in  number  that  the  mere  family  tie  is  not  any 
longer  sufficiently  powerful  to  make  the  individuals  consider 
themselves  as  members  of  one  family,  when  the  various  fami- 
lies have  become  estranged  from  each  other,  owing  to  the 
extensive  number  as  well  as  the  distance  at  which  they  must 
necessarily  live  from  one  another.  Security  of  property,  which 
includes  individual  property,  is  the  mainspring  of  cultivation, 
as,  among  others,  Mr.  Henry  Carey  has  abundantly  proved  in 
his  Political  Economy.  The  Hon.  Mountstuart  Elphinstone 
gives,  on  the  other  hand,  on  page  334  of  his  Account  of  the 
Kingdom  of  Caubul,  London,  i8i5,the  description  of  a  pecu- 
liar tenure  of  land,  by  which  it  is  distributed  among  various 
tribes  every  ten  years  by  lot — an  insecurity  leading  of  course 
to  neglect  of  culture.^ 

Pelasgic  tribe  has  never  become  numerous,  because  it  was  in  a  state  of  barbarism." 
The  history  of  all  barbarous  nations  proves  the  same. 

»  *  For  some  remarks  on  the  fact  that  with  property  in  soil  the  idea  of  private 
property,  and,  consequently,  of  the  necessity  of  protecting  it,  first  presents  itself 
distinctly,  and  that  states  can  become  then  only  stable  and  the  true  foundations 
of  progressive  civilization,  see  section  Ixxxix.  of  this  book.  All  uncivilized  tribes 
furnish  us  with  examples.  They  are  not,  indeed,  without  property,  since  man 
cannot  be  without  it,  but  the  idea  is  loosely  defined ;  property  does  not  yet  fur- 
nish a  solid  substratum  for  social  development.  The  Rev.  Mr.  Yate,  in  his  Ac- 
count of  New  Zealand,  2d  ed.,  London,  1835,  speaking,  on  page  32,  of  the  desire 
of  the  New  Zealanders  to  obtain  money,  instead  of  blankets  and  other  com- 
modities, says,  "  If  they  possessed  any  property  (meaning  personal),  and  it  were 
known  to  any  one  else,  they  would  be  bound  in  honor  to  distribute  it  amongst 
their  friends  and  adherents,  or  be  liable,  on  the  first  cause  of  oftence,  to  be  dis- 
possessed of  all."  We  may  observe  the  same  respecting  many  chiefs  in  the 
middle  ages. 

Mr.  Yate  also  says  that  the  New  Zealanders  like  money  because  they  can  hide 
it,  carry  it  about  their  person — ^just  like  the  Turks. 


CHAPTER    HI. 

Civilization. — What  does  it  consist  of? — Requires  Society. — It  develops  Man,  is 
his  truly  Natural  State. — Futile  dreams  of  Innocence  and  Virtue  without  Civil- 
ization.— Shepherds  are  savage. — Destiny  of  Woman. — High  Importance  and 
Sacred  Character  of  the  Family.— Virtues  developed  by  it. — The  true  Nursery 
of  Patriotism. 

XVII.  Men  thus  led  to  keep  together  in  families,  and  in- 
duced by  every  farther  progress  of  their  species  to  live  in 
society,  discover  that  its  importance  rises  the  more  civilized 
they  become,  and,  as  has  been  stated,  man's  destiny  is  civil- 
ization. If  we  define  the  latter  as  the  cultivation,  develop- 
m.ent,  and  expansion  of  all  our  powers  and  endowments,  with 
reference,  both  as  effect  and  as  cause,  to  the  social  state  of 
man,  no  one  will  deny,  I  suppose,  the  position.'  Man  was 
either  made  to  be  stationary  or  for  civilization  ;  a  medium  is 
not  imaginable.  If  he  was  made  to  remain  stationary,  we 
oupfht  to  know  in  what  stage.     That  of  the  lowest  barbarism  ? 


'  Lieber's  Remarks  on  the  Relation  between  Education  and  Crime,  printed  by 
the  Philadelphia  Prison  Society,  Philadelphia,  1835,  page  4  et  seq.  Whatever 
definition  we  may  give  of  civilization,  my  remarks  will  apply.  We  may  say,  the 
civilization  of  a  nation  is  its  aggregate  manifestation  of  mind  as  ruling  over  mat- 
ter. We  call  a  nation  more  or  less  civilized  according  to  the  variety  and  the 
greater  or  less,  deeper  or  more  superficial  extent  of  this  manifestation  :  to  be 
brief,  that  nation,  I  believe,  will  be  called  most  civilized  among  which  the 
greatest  number  of  ideas  are  most  widely  diffused.  A  nation  which  has  very 
distinct  and  widely  diffused  ideas  of  a  proper  administration  of  justice  or  of  tech- 
nical skill  will  be  called  more  civilized  than  one  which  is  wanting  in  these  ideas, 
and  less  so  than  one  which  adds  to  this  stock  all  the  ideas  of  refined  taste,  in  the 
fine  arts,  literature,  social  intercourse,  etc.  I  recommend  the  perusal  of  the  first 
lecture  of  Mr.  Guizot's  History  of  European  Civilization,  respecting  the  meaning 
of  the  word  civilization.  Deserving  of  attention  are  the  remarks  of  William 
Humboldt  on  Civilization,  Culture,  and  that  which,  higher  than  both,  is  desig- 
nated by  the  German  word  Bildung,  page  37  of  Introduction  to  the  Kawi  Lan- 
guage, etc.,  already  quoted. 

127 


128  THE  STATE. 

If  not,  then  he  must  be  intended  for  movement ;  and  where 
is  this  movement  to  stop?  What  direction  is  it  to  take? 
Certainly  that  of  melioration. 

By  civilization  man  develops  his  moral,  intellectual,  and 
physical  powers,  and  by  civilization  man  becomes  more 
and  more  master  over  matter.  But  civilization  cannot  be 
conceived  of  without  society,  by  which  I  do  not  mean  large 
congregated  masses  only,  but  men  closely  united  by  a  variety 
of  important  relations  and  strongly  affecting  each  other's  wel- 
fare. He  was  great  "qui  dissipatos  homines  congregavit  et  ad 
societatem  vitae  convocavit."  (Cic,  Tusc,  i,  25.)  Without  so- 
ciety, no  fellow-feeling,  no  kindness'  and  sympathy;  without 
society,  no  public  opinion,  no  shame,  no  virtue,  no  religion  ; 
without  society,  no  impulse  for  industry,  no  mental  develop- 
ment, no  intellectual  progress  from  generation  to  generation, 
no  common  stock  of  science,  no  common  stock  of  moral  expe- 
rience, no  literature,  no  taste,  no  music,  no  fine  arts,  no  exalted 
love  of  the  beautiful,  no  deep  reflection,  no  refinement ;  with- 
out society,  no  expanded  idea  of  justice  and  mutual  respect  of 
rights,  property,  and  independence,  no  public  spirit  and  all  that 
is  connected  with  this  elevating  quality ;  without  society,  no 
true  family  life,  the  source  of  so  much  that  is  pure,  kindly, 
and  great ;  without  society,  no  great  degree  of  individual  or 
territorial  division  of  labor,  no  extensive  exchange  of  produce, 


'  Man  may  live  in  solitude,  yet  aid  effectually  in  the  progress  of  mankind  and 
feel  the  liveliest  sympathy  for  its  welfare.  Few  more  active  citizens  have  ever 
lived  than  Fra  Paolo  Sarpi,  already  mentioned,  in  his  solitary  cell,  but  though  in 
a  cell  he  still  lived  in  society,  because  closely  connected  with  it  by  his  books, 
the  active  interest  he  took  in  the  mighty  changes  of  his  time,  in  science,  religion, 
and  politics,  and  by  his  intercourse  with  the  first  men  of  his  state.  So  does  soli- 
tude exercise  a  most  powerful  effect  upon  the  reflecting  mind,  both  morally  and 
intellectually,  an  effect  of  its  own,  not  to  be  supplanted  by  anything  else ;  nor 
can  we  prepare  ourselves  better  for  any  great  event,  in  which  we  know  that  we 
shall  have  to  act  an  important  part,  than  by  retiring  for  a  time  into  solitude. 
The  ancient  philosophers,  the  prophets,  Christ  himself,  give  the  example ;  nor 
will  any  one  who  has  ever  tried  absolute  solitude  deny  its  powerful,  salutary,  and 
lasting  effect.  This  proves,  however,  nothing  against  my  position.  Man,  in 
these  cases,  takes  the  amount  of  civilization  gained  by  society  with  him,  and 
remains  united  with  it  by  all  the  ties  of  intellect. 


CIVILIZATION  DEVELOPS  MAN.  129 

of  customs  and  ideas,  no  calming  and  enlarging  commerce;^ 
without  society,  no  polish  of  manners,  no  urbanity  of  inter- 
course, no  saving  of  time,  no  increase  of  productiveness,  no 
union  of  labor,  of  capital,  of  mind  and  various  means,  no 
works  to  benefit  the  many,  no  roads,  no  canals,  no  insurance 
against  the  elements,  no  schools,  no  protection,  no  cultivation 
to  its  greatest  extent,  no  multiplied  and  animating  enjoy- 
ments, no  raising  of  the  standard  of  comfort;  without  society, 
no  great  increase  of  numbers ;  without  society,  no  humanity 
in  man. 

Civilization  develops  man,  and  if  he  is,  according  to  his 
whole  character  and  destiny,  made  for  development,  civiliza- 
tion is  his  truly  natural  state,  because  adapted  to  and  effected 
by  his  nature.  "  Naturaliter  ergo  homo  est  animal  sociabile." 
(^gidius  de  Regimine  Principum,  Venice,  1497,  ii.  I,  c.  i.) 

XVIII.  Civilization  develops  man's  physical  powers  in 
various  ways.  We  find,  indeed,  that  the  senses  of  savages 
are  peculiarly  acute  as  to  some  objects,  but  infinitely  more 
developed  are  the  senses  of  civilized  man  by  mechanical 
trades  and  other  occupations,  the  fine  arts,  and  in  many 
other  ways  peculiar  to  civilization.  A  savage  may  excel  him 
in  one  way;  in  how  many,  however,  does  he  not  excel 
the  former !  Civilized  man  can  undergo  far  greater  fatigues, 
both  purely  physical  and  of  a  mixed  character.  The  North 
American  Indian  can  journey  longer  with  his  heavy  burden 
across  the  portages  than  a  white  man  ;  but  how  would  he 
stand  the  fatigues  of  a  campaign  in  Egypt  or  Russia  ?  how 
would  he  endure  a  climate  so  unaccustomed  to  him  as  tlie 
parching  rays  of  the  tropic  regions  or  the  ice  of  the  pole  were 


*  Free  nations  esteem  commerce  as  a  public  benefit.  The  English,  the  Vene» 
tians,  the  Americans,  the  Greeks,  are  instances.  The  ifiTropia  or  commerce  on  a 
large  scale  was  highly  valued  by  the  Greek,  though  he  undervalued  the  /caTTjy/lof 
or  shopkeeper.  We  have  to  imagine  the  Greek  not  only  as  the  artist,  poet, 
scholar,  politician,  enthusiastic  lover  of  liberty,  but  also  as  the  active,  shrewd, 
and  persevering  merchant  of  antiquity.  See  Heeren's  different  works  on  the 
ancient  nations. 

9 


I30 


THE  STATE. 


to  the  Humboldts,  Parrys,  Cailles,  Rosses,  Backs,  Clapper- 
tons  ?  The  muscular  strength  of  civilized  man  has  been  as- 
certained to  be  greater  than  that  of  uncivilized  man,  as  shown 
by  the  dynamometer,  an  instrument  with  a  graduated  scale  for 
measuring  muscular  force.  The  sailors  of  a  British  ship  were 
able  to  carry  the  index  some  degrees  farther  than  any  of  the 
various  tribes  of  the  South  Sea  islands  upon  whom  it  was 
tried.  Lastly,  it  is  with  advancing  civilization  that  longevity 
invariably  increases,  as  all  bills  of  mortality  abundantly  prove. 

XIX.  The  toils  and  woes  of  the  human  species  incident  to 
the  frailty  of  their  bodies,  ill-guided  and  jarring  appetites,  and 
misconceived  interests,  led  men  at  a  very  early  time  to  im- 
agine a  period  when  plenty  rendered  labor  unnecessary,  and 
universal  content  prevented  contest  and  clashing  of  private 
interests.  Poets  dwell  with  satisfaction  upon  this  agreeable 
dream,  which  gave,  at  least  to  the  fancy,  that  for  which  the 
heart  yearned,  and  to  which  reality  offered  so  decided  a  con- 
trast. The  more  degenerate  the  times,  the  more  trouble  and 
misery  and  vice  there  was  in  the  world,  the  more  vividly  was 
this  state  of  pristine  happiness  depicted  ;  and  a  Juvenal,  before 
he  lashes  the  depravity  of  the  women  at  his  time,  first  paints 
the  golden  age  (Satire  VI.).  It  was  forgotten,  or  not  distinctly 
seen,  that  man  was  destined  to  gain  by  exertion,  to  conquer 
all  that  is  necessary  for  him,  that  there  is  no  ready-made 
happiness,  not  even  comfort  for  him.  No  fur  protects  his 
body,  he  has  to  clothe  himself;  no  shelter  is  made  for  him, 
he  must  learn  to  build  one;  his  hand  is  no  weapon  like  the 
corresponding  limbs  of  many  animals,  he  has  to  invent  arms 
and  instruments  for  it.  Instead  of  the  many  specific  physical 
instincts  with  which  the  brute  creation  has  been  endowed,  he 
has  received  superior  intellect,  but  this  intellect  itself  has  first 
to  be  developed  gradually  from  generation  to  generation. 

The  golden  dream  of  original  happiness  was  coupled  with 
another  equally  erroneous  view.  Man  saw  the  perfect  laws 
of  nature  on  the  one  hand,  and  the  many  real  or  supposed 
imperfections  of  human  institutions  on  the  other,  degeneracy 


CIVILIZATION  IS  NATURAL.  I3I 

and  enervation,  folly  and  discontent ;  it  was  concluded  there- 
fore that  all  was  owing  to  his  abandoning  or  counteracting 
nature,  as  if  it  had  been  the  object  of  the  maker  of  all  to 
place  man  on  a  par  with  the  brute  or  inanimate  creation.     The 
fact,  which  could  not  escape  observation,  that  in  many  cases 
man  had  actually  left  his  true  nature,  came  in  support  of  this 
view.     Times  like  those  in  which  Rousseau  wrote,  when  the 
most  burdensome  and  disfiguring  dress  corresponded  to  the 
shorn,  crippled,  and  denaturalized   parks  and   gardens,   and 
when  vice  in  the  king's  mistresses  was  elevated  to  political 
rank,   established    almost   as  a  state    institution,  furnish    us 
easily  with  a  key  by  which  we  may  explain  the  opening  sen- 
tences of  Emile,  his  work  on  education.     "  All  is  good,"  he 
says,  "  as  it  comes  out  of  the  hands  of  the  author  of  things  : 
everything  degenerates  in  the  hands  of  man.     He  forces  one 
land  to  nourish"  the  productions  of  another,  one  tree  to  bear 
the  fruits  of  another ;  he  mixes  and  confounds  the  climates, 
the  elements,  the  seasons ;  he  mutilates  his  dog,  his  horse, 
his  slaye ;  he  overturns  everything,  disfigures  all ;  he  loves 
deformity,  monsters;  he  wishes  nothing  to  be  such  as  nature 
has  made  it,  not  even  man;  he  must  be  drilled  like  a  horse 
in    the    riding-school ;    he    must   be   tortured    according   to 
fashion,  like  the  tree  of  his  garden." '     Rousseau  forgot,  how- 
ever, that  it  is  man  too  who  improves  upon  unaided  nature 
everywhere  ;    he  makes  the   soil   bear   hundred-fold,  he  en- 


•  I  am  not  desirous  of  mutilating  in  quoting,  and  shall  add,  therefore,  the  pas- 
sage which  explains  the  view  of  the  author,  and  modifies,  in  a  degree,  what  the 
reader  may  have  conceived  to  be  the  meaning  of  the  above.  "  Sans  cela,"  adds 
Rousseau,  "  tout  iroit  plus  mal  encore,  et  notre  espece  ne  veut  pas  etre  fa9onnee 
a  demi.  Dans  I'etat  ou  sont  desormais  les  choses,  un  homme  abandonne  des  sa 
naissance  k  lui-raeme  parmi  les  autres,  seroit  le  plus  defigure  de  tous.  Les  pre- 
juges,  I'autorite,  la  necessite,  I'exemple,  toutes  les  institutions  sociales  dans  les- 
quelles  nous  nous  trouvons  submerges,  dtoufferoient  en  lui  la  nature  et  ne 
mettroient  rien  a  la  place.  Elle  y  seroit  comme  un  arbrisseau  que  le  hasard  fait 
naitre  au  milieu  d'un  chemin,  et  que  les  passans  font  bientot  perir  en  le  heurtant 
de  toute  part  et  le  pliant  dans  tous  les  sens." 

It  will  be  seen,  however,  even  from  this  passage,  that  Rousseau  did  share  with 
so  many  other  writers  of  his  age  the  mistaken  notion  that  man  in  a  state  of  nature 
was  as  perfect  as  a  tree. 


132  THE  STATE, 

larges  the  fruits,  ennobles  the  stock,  saves  from  destruction, 
unites  what  was  severed,  carries  the  blessings  and  pleasures 
of  one  climate  to  another,'  and  renders  palatable  what  was 
repulsive,  harmless  what  was  poisonous;  his  horse  runs  more 
swiftly  than  the  wild  horse,  his  mule  endures  greater  fatigue. 
Where  is  the  heavy  wheat  with  bending  ear,  except  on  his 
cultivated  ground  ?  where  the  grapes  so  delicious  as  those  of 
his  vineyard  ?  Where  in  nature,  as  it  is  styled,  are  all  the 
cerealia  ?  The  overcoming  of  the  disadvantages  and  defects 
of  climate  is  one  of  the  boldest,  noblest  traits  of  man. 

XX.  Trees,  rocks,  and  rivers  once  being  considered  in  a 
state  of  nature,  and  civilized  man  not,  nothing  was  clearer 
than  that  the  savage  man  was  believed  more  natural,  and 
consequently,  by  some,  less  depraved,  than  the  civilized. 
Some  of  the  acutest  philosophers,  as  Hobbes,  speak  of  the 
savage  as  man  in  a  state  of  nature,  from  which  it  necessarily 
follows  that  they  conceived  civilized  man  as  being  in  an  arti- 
ficial— a  made — state.  In  fact,  he  and  so  many  others  with 
him  were  partly  induced  to  consider  the  savage  in  a  state  of 
nature  because  government,  the  state,  appeared  to  him  as 
something  made,  agreed  upon.  If  so,  it  was  clear  that  some 
state  of  things  must  have  existed  before  the  state  zuas  made, 
and  this  state  of  things  might,  if  such  had  ever  been  the 
case,  be  called  a  state  of  nature. 

It  would  be  difficult  indeed  to  settle  what,  according  to 
those  philosophers,  is  the  precise  state  of  nature.  Does  man 
live  in  it  only  for  one  moment  after  his  creation  ?     Or  does 


'  A  simple  list  of  the  useful  and  ornamental  plants  brought  to  England  from 
the  various  quarters  of  the  globe,  with  the  time  when  first  introduced,  such  as  I 
have  seen  in  various  works,  for  instance,  I  believe,  in  Loudon's  Encyclopsedia 
of  Gardening,  and  in  one  of  the  companions  to  the  British  Almanac,  is  well 
worth  a  moment's  reflection.  To  how  incalculable  a  degree  have  not  comfort, 
health,  enjoyment,  delight,  refinement,  nay,  life  itself,  been  increased  in  England 
from  the  first  rye  and  wheat  which  were  carried  across  the  Channel  to  the  last  tree 
imported  from  New  Holland,  by  the  "  forcing  of  one  land  to  bear  the  productions 
of  another,"  as  Rousseau  calls  it.  Imagine  Europe  without  this  bouleversement, 
in  ancient  Celtic  simplicity  ! 


CIVILIZATION  IS  NATURAL. 


133 


the  tattooed  savage,  who  beautifies,  as  he  supposes,  the  body 
of  his  child  with  a  variety  of  artificial  and  tormenting  means, 
live  still  in  a  state  of  nature  ?  Or  is  that  a  state  of  nature 
where  men  live  without  any  sort  of  authority?  If  so,  then  he 
cannot  be  found  anywhere  in  a  state  of  nature.  Or  is  that 
the  state  of  nature  where  small  hordes  pursue  each  other,  or 
where  they  live  peaceably  together  ?  We  find  these  uncivil- 
ized tribes  in  all  these  conditions  and  relations  to  one  another. 
Why  is  war  a  state  of  nature,  and  not  peace  ?  Many  of  the 
rudest  tribes  disfigure  their  bodies  far  more  extravagantly 
than  any  courtier  of  Louis  XIV.  or  Charles  II.  did  by  his 
periwig  and  hair-powder  ?  Why  is  the  savage  more  natural  ? 
But  we  have  to  ask,  what  is,  philosophically  speaking,  the 
true  state  of  nature  of  any  being  or  thing  ?  Doubtless  that  in 
which  it  fulfils  most  completely  that  end  and  object  for  which 
it  is  made  according  to  its  organization,  and  the  principles  of 
its  vitality — the  fundamental  law  of  its  life  and  being.  A 
dwarfish  pine-tree  on  the  high  Alps,  near  the  confines  of  per- 
petual snow,  would,  in  its  crippled  state,  certainly  not  be  con- 
sidered in  a  natural  state ;  nor  would  a  plant  be  called  of 
natural  growth  if  a  too  luxuriant  soil  has  given  it  precocious 
exuberance,  of  which  a  deranged  organism  and  early  decay 
must  be  the  consequence.  Neither  the  haggard  look  of  hun- 
ger nor  the  flush  of  fever  is  natural.  Man,  with  his  expansive 
faculties,  progressive  capacities,  and  moral  endowments,  capa- 
ble of  cultivation  and  requiring  it;  man,  who  has  received  an 
unprotected  body  indeed,  but  one  which  adapts  itself  to  all 
varieties  of  climes,  which  is  able  to  carry  him  through  various 
stages  of  social  progress,  and  is  by  its  fine  organization  adapted 
to  his  moral  and  intellectual  destiny,  is  not  in  a  state  of  nature 
when  all  that  characterizes  him  as  man,  and  distinguishes  him 
from  the  brute,  is  stinted  and  stifled  by  a  life  of  savageness, 
Man  was  essentially  made  for  progressive  civilization,  and 
this,  therefore,  is  Ids  natural  state. 

XXI.  The  reports  of  travellers  on  the  moral  state  of  man 
in  the  presumed  state  of  nature  corroborate  what  I  maintain. 


134  THE  STATE. 

The  inhabitants  of  Lord  North's  island  are  probably  as  un- 
connected with  any  other  portion  of  the  human  family  as  we 
can  imagine  any  community  to  be.  Contrast  Holden's  Narra- 
tive of  a  Shipwreck  on  the  Pelew  Islands '  with  the  presumed 
primitive  excellence  of  man  in  a  state  of  nature,  severed  from 
civilization.  Their  mind  so  contracted  that  they  would  not 
use  the  fish-hooks  offered  by  the  wrecked  sailors,  though  they 
acknowledged  them  to  be  much  superior  to  their  own,  made 
of  turtle-shell,  because  Yarris,  their  god,  would  be  angry  at 
their  abandoning  the  old-fashioned  hook  (in  which  particular, 
however,  it  must  be  owned,  they  substantially  resemble  many 
white  and  refined  people) ;  their  disposition  cruel,  their  habits 
indolent ;  their  sense  of  right  and  wrong,  and  of  decency, 
hardly  awakened  ;  improvident  in  the  highest  degree.  Or 
ponder  on  such  occurrences  as  Captain  Back  relates  in  his 
Narrative  of  the  Arctic  Land  Expedition  in  1833-1835,  of  the 
Cree  Indian  named  Pepper  (p.  175,  in  the  American  edition). 
They,  at  least,  do  not  exhibit  any  inviting  picture  of  the  harm- 
less state  among  the  uncivilized.  Nothing  can  bridle  man's 
passions,  and  the  undue  action  of  the  necessary  primary 
agents  of  the  human  soul,  but  civilization,  society,  and  that 
which  can  be  cultivated  in  it  alone  in  any  high  degree,  knowl- 
edge and  religion.  Religion  belongs  to  civilization.  It  is 
true,  indeed,  that  each  farther-advanced  stage  of  society  offers 
new  opportunities  for  crime.  Each  new  branch  of  industry, 
new  field  of  activity,  increased  intercourse  between  man  and 
man,  offers,  of  necessity,  an  additional  opportunity  for  offences. 
Use  carries  with  it  the  possibility  of  abuse,  and  it  thus  fre- 
quently happens  that  the  number  of  indictable  and  punishable 
crimes  increases  with  a  progress  in  civilization,  but  not  neces- 
sarily, on  that  account,  criminality.  The  art  of  writing  alone 
made  all  the  crimes  of  forgery  possible — one  of  the  most  nu- 
merous offences  in  highly  civilized  countries;  an  Indian  in  the 
West  cannot  commit  it.^     The  increase  of  the  number  of  laws 


'  Boston,  1836. 

=  I  have  given  my  views  on  this  subject  in  the  Remaiks   on  the  Relation 
betv/een  Education  and  Crime,  aheady  quoted. 


LAIVS   CANNOT  BUT  INCREASE.  135 

with  the  progress  of  civilization  produced  an  early  belief  that 
increased  immorality  and  criminality  were  the  cause.  But  it 
is  not  so,  notwithstanding  the  high  authorities  to  the  con- 
trary. "  Many  men  marvel,"  says  Lord  Coke,  "  the  reason 
that  so  many  acts  and  statutes  are  daily  made  ;  this  verse 
answereth  : 

Quasritur  ut  crescunt  tot  magna  volumina  legis, 
In  promptu  causa  est;  crescit  in  orbe  dolus." 

(Twyne's  case.  Coke's  Reports,  iii.  80.)  So  says  Tacitus :  "  Cor- 
ruptissima  republica  plurimse  leges"  (Ann.,  iii.  27).  I  do  not 
say  that  laws  are  not  multiplied  by  corruption,  but  civilization 
must  increase  their  number  though  corruption  may  diminish. 
It  necessarily  multiplies  men's  relations,  because  it  develops 
their  activity,  and  each  new  relation  draws  after  it  new  laws 
to  protect  or  regulate  it.  Each  year  brings  forth,  at  present, 
many  new  laws,  while  the  middle  ages  had  comparatively 
few;  and  will  it  be  maintained  that  immorality  is  now  greater? 
Works  like  Wachsmuth's  Moral  History  of  Europe — a  very 
extensive  work — or  Chateaubriand's  Etudes  Historiques  will 
convince  us  at  once  of  the  contrary.'  The  number  of  the 
boxes  in  the  apothecary's  shop  has  increased ;  the  variety  of 
diseases  is  probably  increasing  with  civilization,  but  not  so 
mortality  ;  mortality  decreases  with  civilization.  The  variety 
of  offences  increases,  but  not  criminality.  There  are,  besides, 
many  other  reasons  why  the  number  of  laws  should  increase, 
fhey  are  not  collected,  classed,  and  condensed,  that  is,  codi- 
fied at  the  proper  time.  Sir  Francis  Bacon  and  Chief-Justice 
Hale  (see  his  preface  to  Rolle's  Abridgment)  already  pro- 
posed and  urged  codification.  Another  reason  is,  that  what- 
ever people  have  a  right  to  do,  they  will  do  too  much  of,  if  it 
involves  some  sort  of  privilege.  The  legislator  likes  to  legis- 
late; so  those  who  have  the  right  like  to  speak:  lawyers,  legis- 
lators, ministers,  speak  too  much.     Luther  found  it  necessary 

*  The  many  tables  of  moral  statistics,  drawn  up  from  official  documents,  which 
have  of  late  been  published,  are  not  discouraging. 


136 


THE  STATE. 


to  enumerate  among  the  nine  "  qualities  and  virtues  of  a 
good  preacher,"  as  the  sixth,  that  he  ought  to  know  when 
to  stop  (vol.  xxii.  p.  991).  It  is  vain,  however,  to  hope  that 
the  laws  of  a  civilized  nation  can  possibly  be  reduced  to  a 
few  principles.  They  would  produce  incalculable  litigation. 
Still,  it  is  true,  on  the  other  hand,  that  civilization  tends 
likewise  to  simplification,  to  a  classification  of  what  before 
was  a  mere  mass  without  order — in  common  machinery  as 
well  as  in  scientific  or  political  matters. 

XXII.  My  remarks  do  not  only  apply  to  the  difference  be- 
tween civilized  and  uncivilized  tribes;  they  hold  good  in  other 
respects.  The  innocence  of  shepherds  has  been  a  frequent 
theme  of  former  poets,  so  much  so  that  pastoral  poetry  forms 
an  important  class  in  the  literature  of  many  nations.  Lambs 
are  innocent;  but  shepherds  are  not  lambs.  The  ideas  of 
rural  simplicity  and  happiness  associated  with  Arcadia  are  of 
a  purely  poetic  origin.  Shepherds,  where  they  form  a  class, 
unconnected  with  society,  are  generally  ferocious  men,  given 
to  violence  and  brutality,  and  very  frequently  either  in  con 
nection  with  robbers,  or  robbers  themselves.  I  found  the 
Greek  shepherds  a  rude  and  wild  race,  described  to  me  as 
dangerous  people ;  the  Italian  shepherds  or  herdsmen  form  a 
part  of  the  worst  population  ;  the  herdsmen  of  Hungary  are  a 
rude  and  little  restrained  race.  What  sort  of  men,  in  a  moral 
point  of  view,  the  Spanish  shepherds  are,  who  traverse  the 
country  with  their  merino  flocks,  I  do  not  know  ;  but  we  all 
know  against  how  many  revolting  crimes  Moses  found  him- 
self obliged  to  provide  by  his  laws.  The  Jews  were  then  a 
nomadic  tribe.  The  Bashkeers,  likewise  a  nomadic  people, 
tributary  to  the  crown  of  Russia,  and  who  followed  the  army 
against  the  French  in  the  year  1813,  were  so  rude  that  they 
could  not  be  billeted  in  the  houses  of  cities,  but  had  to  biv- 
ouac in  the  open  squares.  And  yet  does  a  man  who  spends 
his  whole  life  on  the  back  of  his  horse,  and  drives  his  camels 
from  one  steppe  to  another,  not  live  "  in  a  natural  state"  ?  In 
countries  in  which  there  are  many  shepherds,  yet  not  form- 


WOMAN. 


137 


ing  a  separate  class,  as  in  Germany,  they  are  frequently  dis- 
tinguished by  some  peculiar  knowledge,  for  instance,  of 
medicinal  herbs,  but  not,  that  I  am  aware  of,  for  any  higher 
or  lower  degree  of  morality.  The  early  founders  of  cities 
have  been  justly  renowned  with  all  nations.  Theseus  was 
deified  for  having,  among  other  deeds,  united  the  inhabitants 
of  Attica  into  a  city ;  and  annual  feasts  showed  how  much 
importance  the  Athenians  attached  to  this  step  in  the  civiliza- 
tion of  their  chosen  peninsula.  The  German  emperor  Henry 
the  City-Builder  is  ranked  among  the  greatest  benefactors  of 
Germany,^ 

XXIII.  The  family,  so  important  an  agent  in  leading  man 
to  society,  to  civilization,  obtains  a  higher  importance  with 
every  progress  which  society  makes  in  civilization ;  for  the 
family  is  natural  to  man,  and  all  that  is  natural  to  him,  that  is 
essentially  human,  is  more  clearly  developed  with  each  ad- 
vancing movement  in  civilization.  With  the  higher  impor- 
tance of  the  family  the  woman  likewise  approaches  that  true 
position  for  which  she  is  calculated.  This  higher  importance 
of  the  family,  and  in  it  of  the  woman  as  wife  and  mother,  is 


'  Our  languages,  likewise,  testify  against  the  poets.  Villain  is  from  villantis, 
which  signified  in  Low-Latin  a  villager;  and  though  it  might  be  objected  that 
the  present  meaning  of  villain  is  attached  to  the  word  owing  to  its  having  meant 
originally  a  bondsman,  a  vile  fellow,  there  are  other  languages  which  involve  the 
same  idea.  Dorperheid,  from  dorp,  the  Dutch  and  old  English  for  village,  so 
that  the  word  literally  translated  would  be  dorpishness,  signified  in  the  seven- 
teenth century  (the  word  is  not  any  longer  much  in  use),  in  Dutch,  vileness, 
villany.  I  do  not  mean  to  intimate  that  the  rural  population  in  our  times  forms 
the  focus  of  crime  and  worthlessness.  Far  be  it.  Criminal  statistics  show  that 
in  most  civilized  countries  the  agricultural  districts  are  less  productive  of  crime 
than  others.  The  reason  is  because  the  latter  are  generally  of  a  manufacturing 
character;  and  manufactures,  together  with  other  circumstances,  existing  in 
many  countries,  furnish  an  abundance  of  crimes.  This  last  remark  does  not 
apply  to  the  United  States ;  but  the  works  of  Guerry,  Dupin,  Julius,  and  other 
statistical  writers  on  criminal  matters  show  this  relation  to  exist  pretty  generally 
in  Europe.  I  merely  intended  to  show  that  the  languages  indicate  that  civiliza- 
tion and  morality  do  not  necessarily  go  hand  in  hand  with  a  separation  from 
society,  and  that  both  are  originally  the  fruits  of  a  life  taking  the  forms  of  larger 
communities. 


138  THE  STATE. 

not  only  a  general  one  by  way  of  influence  upon  society,  but 
it  is  more  distinctly  manifested  and  acknowledged  by  specific 
laws,  which  pronounce  the  sacredness  of  matrimony,  secure 
the  rights  of  the  woman  in  her  capacity  as  wife,  mother,  or  in 
her  single  state,  by  the  laws  of  inheritance,  by  securing  the 
rights  and  protection  of  children  in  infancy,  by  providing  that 
relations  in  an  ascending  or  descending  line  are  not  bound  to 
inform  against  one  another,'  that  escapes  favored  by  relations 
shall  not  be  punished,  etc.^ 

Woman  has  received,  in  the  great  order  of  things,  a  dif- 
ferent physiologic  organization  and  mental  bias  from  those  of 
man.     The  Creator  has  directed  her  to  receive  her  impres- 


'  Kinsmen  in  the  ascending  or  descending  line,  sisters  and  brothers,  husband 
and  wife,  and  those  related  by  marriage  in  the  first  degi-ee,  are  not  bound  to 
inform  against  one  another,  nor  are  they  bound  to  such  preventive  actions  as 
would  necessarily  lead  to  such  information.  (Bavarian  Penal  Code,  article  79.) 
But  ascending  kinsmen,  husbands,  are  bound  to  endeavor  to  prevent  the  crime, 
or  they  are  punishable.  The  explanation  of  this  law,  in  the  Notes  to  the  Penal 
Code,  vol.  i.  p.  212,  speaks  of  the  sacredness  of  the  ties  of  blood,  which  the  state 
shall  not  tear  asunder. 

*  The  Proposition  of  a  Penal  Code  for  the  kingdom  of  Wurtemberg,  Stuttgard, 
1835,  declares  relations  in  a  still  more  remote  degree  free  from  penalty  if  they 
personally  protect  the  criminal,  without  of  course  injuring  others  or  interfering 
with  public  authority.     See  article  86. 

The  Proposition  of  a  Penal  Code  for  the  kingdom  of  Norway,  Christiania, 
1835,  declares  the  same  free  from  penalty  if  they  hide  or  assist  a  criminal 
kinsman  to  escape.     See  article  10. 

See  the  Motives  published  with  both  these  Propositions,  which  by  this  time 
may  have  become  the  law  of  the  land. 

It  is  curious  that  the  Chinese  penal  code,  throughout  of  a  severe  character,  still 
holds  relations  who  assist  a  criminal  free  from  guilt.  The  great  reverence  incul- 
cated by  the  Chinese  towards  parents  was  undoubtedly  one  of  the  motives.  The 
code  decrees,  "  All  relations  connected  in  the  first  and  second  degree,  and  living 
under  the  same  root,  maternal  grandparents  and  their  grandchildren,  fathers- 
and  mothers-in-law,  sons-  and  daughters-in-law,  grandchildren's  wives,  husbands, 
brothers  and  brothers'  wives,  when  mutually  assisting  each  other  and  concealing 
the  offences  one  of  another,  and,  moreover,  slaves  and  hired  servants  assisting 
their  masters  and  concealing  their  offences,  shall  not  in  any  such  case  be  punish- 
able for  so  doing."  More  distant  relations  are  punished  more  severely,  accord- 
ing to  the  more  remote  degree  of  relationship.  Ta  Tsing  Leu  Lee,  Penal  Code 
of  China,  translated  from  the  Chinese  by  Sir  George  T.  Staunton,  London,  1810, 
4to,  p.  34  et  seq. 


MONOGAMY. 


139 


sions  more  through  the  channel  of  feehng ;  she  has  been  en- 
dowed with  a  more  tender  sensibihty ;  man  has  to  rely  more 
upon  reflection.  Her  consequent  position  in  the  state,  and 
natural  sphere  of  action,  will  be  treated  of  in  a  subsequent 
part  of  the  work.  Suffice  it  here  to  say  that  she  steps  beyond 
her  proper  circle  of  activity,  which  is  emphatically  that  of 
the  family,  through  which  nevertheless  she  becomes  a  most 
essential  ingredient  of  the  state,  if  she  abandons  the  sphere 
of  tender  sentiment,  of  affection,  peace,  and  love.  And  as 
nowhere  the  essential  order  of  things  can  be  violated  without 
incurring  great  danger,  so  does  the  woman  expose  her 
morality  and  whole  true  character,  and,  therefore,  society,  to 
danger,  the  moment  she  interferes  with  politics.  "When  a 
woman  gives  her  mind  to  politics,  she  becomes  best  ac- 
quainted with  what  is  least  respectable  in  them — their  per- 
sonalities." ^ 

On  the  other  hand,  we  find  her  in  a  deplorable  condition 
before  she  has  been  raised  by  some  degree  of  civilization, 
Ledyard  and  Mungo  Park  received  kind  attentions  at  their 
hands,  while  we  find  in  Holden's  Narrative,  cited  already 
twice,  the  following  passage  on  page  93  :  "  And  what  may  be 
regarded  as  remarkable,  the  female  portion  of  the  inhabitants 
(of  Lord  North's  island)  outstrip  the  men  in  cruelty  and  sav- 
age depravity,  so  much  so  that  we  were  frequently  indebted 
to  the  tender  mercies  of  the  men  for  escapes  from  death  at 
the  hands  of  the  women." ' 

XXIV.  The  family  cannot  exist  without  marriage,  nor  can 
it  develop  its  highest  importance,  it  would  seem,  without 
monogamy.  Civilization,  in  its  highest  state,  requires  it,  as 
well  as  the  natural  organization  and  wants  of  man,     Cuvier, 


'  Taylor's  Statesman,  London,  1836,  page  72. 

»  The  great  depth  of  immorality  to  which  a  woman  is  much  more  apt  to  sink 
at  once  by  crime,  and  how  exceedingly  difficult  it  becomes  to  reclaim  female 
offenders,  have  been  treated  in  the  Introduction  to  Lieber's  Translation  of  the 
Penitentiary  System  in  the  United  States,  by  Messrs.  de  Beaumont  and  de  Tocque- 
ville,  Philadelphia,  1833,  page  xiii.  et  seq. 


I40 


THE  STATE. 


in  his  repeatedly  quoted  Animal  Kingdom  (vol.  i.  pages  ^6, 
yy),  says,  "  The  nearly  equal  number  of  individuals  of  the 
sexes,  and  the  difficulty  of  nourishing  more  than  one  wife 
when  riches  do  not  supply  physical  strength,  show  that 
monogamy  is  that  sort  of  connection  which  is  natural  to  our 
species,  as  well  as  the  fact  that  among  all  those  animals  with 
whom  this  species  of  union  exists,  the  father  takes  part  in  the 
rearing  of  the  child."  Where  polygamy  is  lawful,  few  avail 
themselves  of  this  permission,  simply  because  the  support  of 
several  wives  with  their  offspring  requires  means  beyond  the 
reach  of  far  the  greater  majority  of  people.  On  the  other 
hand,  it  will  generally  be  found  that  those  who  can  support 
several  wives  select  one  in  particular  who  is  pre-eminently 
considered  the  companion  to  the  master  of  the  house.  In 
many  cases  she  is  distinguished  by  a  peculiar  title.  The 
Greeks  mentioned  it  as  an  important  step  in  civilizing  their 
country,  that  the  mythical  Cecrops  established  monogamy. 
They  knew  monogamy  only;^  so  did  the  Romans.  They 
held  this  most  elementary  of  all  institutions  and  first  requi- 
site of  civilization  in  high  honor,  until  the  period  of  universal 
degeneracy  under  the  emperors,  and  then  even  did  the  im- 
perial laws  evince  that  marriage,  viewed  with  regard  to  the 
merest  political  utility,  is  of  essential  importance ;  as  like- 
wise late  statistical  accounts  seem  satisfactorily  to  prove  that 
concubinage  extends  its  enervation  to  the  offspring.^  Cato 
the  Censor  said,  according  to  Plutarch,  that  he  considered  an 
honest  husband  higher  than  a  great  senator,  and  Ulysses, 
returning  from  war  and  glory,  wishes  kind  Nausicaa,  for  all 
her  humanity  shown  him,  a  husband  and  a  house.  "  May 
the  gods  grant  thee  all  thy  heart  desires,  a  husband  and  a 
house;  and  bless  you  with  peace  and  concord.     Happy  ones! 


'  The  tales  of  the  bigamy  of  Socrates  and  Euripides  have  long  been  disproved. 
Two  cases  only  form  an  exception,  that  of  Anaxandrides  in  Sparta,  obliged  to 
take  a  second  wife  on  political  grounds  (Herod.,  5,  40),  and  of  Dionysius  the 
Elder,  of  Syracuse  (Diod.,  14,  44). 

'  See  chap.  iii.  of  the  first  book  of  Quetelet  sur  I'Homme  et  le  D6veloppement 
de  ses  Facullds,  Paris,  1835. 


PATRIOTISM. 


141 


Nothing',  in  truth,  is  more  desirable  and  rejoicing  than  when 
husband  and  wife,  united  in  faithful  love,  administer  quietly 
their  house — a  bitter  sight  to  the  enemy,  but  a  delight  to  the 
friend."     (Odyssey,  6,  180  et  seq.) 

XXV.  It  is  in  the  family,  between  parents  and  children, 
and  sisters  and  brothers,  that  those  strong  sympathies  and 
deep-rooted  affections  grow  up  which  become  the  vital  spark 
of  so  many  good  actions,  which  are  the  medium  through 
which  we  view  other  and  vaster  spheres  with  purer,  intenser 
feelings,  and  which  survive  those  blasts  of  later  life  which 
would  fain  chill  most  hearts  into  cold  egotism.  With  them 
is  mingled  and  a  thousandfold  entwined  all  that  attachment 
which  expands  into  patriotism — that  warm  devotion  to  our 
country  which  loves  to  dwell  in  every  noble  heart,  and  with- 
out which  no  free  state  can  long  exist.  The  love  of  our 
parents,  of  our  children,  of  our  brothers  and  sisters,  makes 
patriotism  a  thrilling  reality.  Why  is  it,  otherwise,  an  ex- 
pression which  goes  through  all  centuries  and  appeals  di- 
rectly to  every  soul  to  fight  for  our  hearths  ?  Why  has  the 
word  hearth  been  chosen  for  country  ?  Because  there  we  see 
it  most  clearly,  feel  it  most  deeply.  Return  from  an  arduous 
war,  from  a  long  absence,  and  see  the  first  high  mountains  of 
your  country;  it  is  a  happy  feeling  indeed,  but  it  is  more 
thrilling  still  when  you  see  the  stile  which  leads  to  your 
father's  meadow.  Why  does  the  word  home  speak  so  di- 
rectly to  our  heart  ?  Because  the  home  contains  what  is 
choicest  for  us  in  the  country.  How  full  of  meaning  are  the 
words  "  bound  home,"  when  they  sound  from  a  vessel  which 
you  pass,  yourself  sailing  to  distant  climes  ! 

Leonidas,  when  he  prepared  himself  for  his  heroic  sacrifice 
and  selected  those  who  were  honored  to  die  with  him,  chose 
men  of  a  mature  age  and  who  had  children.  The  sight  of 
Rome  could  not  melt  the  stern  heart  of  Coriolanus ;  his  wife 
and  mother  could.  When  a  hero,  with  encircled  brow,  has 
passed  through  the  crowded  streets,  and  has  received  the 
thanks  of  his  country  in  the  capitol,  and  his  heart  is  big  with 


142 


777^  STATE. 


glory  and  throbs  with  joy,  he  hastens  home  to  drink  the  joy 
of  joys,  in  the  arms  of  his  wife  and  his  parents.  When  he  is 
doomed  to  die  a  martyr  to  his  country,  as  Padilla,  Egmont, 
or  Barneveldt,  his  last  words  are  directed  to  his  wife,  to  his 
children,  to  his  family.  These  ties,  indeed,  must  be  severed 
when  the  alternative  is  between  family  and  country;  so  must 
at  times  the  love  of  country  yield,  when  the  alternative  is 
between  it  and  the  love  of  mankind.  (See  Patriotism.)  When 
Timoleon  saw  he  could  not  prevail  on  his  brother  Timophanes 
to  desist  from  his  tyrannical  course  of  usurpation,  the  faithful 
lover  of  liberty  conspired  even  against  him,  but  still  "  Timo- 
leon stepped  aside,  and  stood  weeping,  with  his  face  covered, 
while  the  other  two  drew  their  swords"  and  slew  the  tyrant. 
When  Arnold  Winkelried,  in  the  battle  at  Sempach,  saw  that 
his  countrymen  could  not  advance  against  the  dense  wall  of 
Austrian  lances,  he  stepped  forward  and  said,  "  Dear  confed- 
erates, I'll  break  a  path  for  you  ;  think  of  my  wife  and  dearest 
children,"  and  buried  in  his  breast  as  many  lances  as  he  could 
clasp,  and  tore  them  down  with  him.  But  who  can  say  how 
much  at  that  very  moment  the  thought  urged  him  that  he 
would  purchase  liberty  with  his  blood  for  the  land  of  his  very 
children  ? 

XXVI.  The  family  is  the  focus  of  patriotism.  Public  spirit, 
patriotism,  devotion  to  our  country,  are  nurtured  by  family 
ties,  by  the  attachment  to  our  community,  the  interest  in  our 
country,  the  associations  with  our  district,  our  province,  as 
the  love  of  our  country  enables  us  best  to  understand  the 
deeds  of  other  nations.  We  have  little  regard  for  a  man  who 
loves  his  country  in  general,  in  the  abstract,  and  does  not 
take  an  interest  in  the  improvement  or  embellishment  of  his 
own  place.  A  man  who  does  not  love  his  hamlet  will  not 
die  for  his  country,  still  less  live,  labor,  toil  for  his  nation. 
We  shall  presently  see  how  mistaken  those  are  who  believe 
that  the  state  is  nothing  but  an  association  founded  upon 
material  interest,  and  not  a  society  of  closely  united  men.  If 
they  were  right,  the  state  might  dispense  with  public  spirit; 


IMPORTANCE   OF  THE  FAMILY.  ^AX 

but  it  cannot.  Where  public  spirit  has  departed,  the  common- 
wealth is  corrupt;  but  public  spirit  is  generated  first  in  the 
family,  for  through  it  we  are  in  a  visible  and  tangible  way- 
connected  with  what  otherwise  would  remain  for  most  men  a 
bare  abstract  idea,  unable  to  animate,  raise,  inspire,  cheer  on, 
and  prepare  for  sacrifices.  The  members  of  a  state  are  not 
wheels  of  clock-work,  working,  indeed,  with  each  other,  but 
not  feeling  for  one  another.  Let  sympathy  and  disinterested 
affection  come  whence  it  may,  so  that  we  have  it — a  refresh- 
ing dew  upon  the  arid  fields  of  practical  life. 

XXVII.  The  Jesuits  condemn  the  love  of  our  kinsmen  as 
a  carnal  inclination,'  and  they  praise  a  member  of  their  so- 
ciety for  having  so  entirely  conquered  his  feelings  that  he 
could  quietly  pass  his  native  place  after  a  long  absence,  and  in 
spite  of  the  strongest  desire  to  see  his  relations.^  But  so  is 
parental  love,  in  its  origin,  carnal ;  so  is  marriage,  which  we 
have  found  to  be  so  important  an  element  of  civilization, 
originally  founded  in  the  material  world.  It  is  a  principle  in 
nature  that  the  first  impulse  is  given  by  the  physical  world, 
by  relations  of  matter;  but  we  have  to  develop,  perfect,  trans- 
form, ennoble,  spiritualize  them.  It  is  a  well-known  fact  that 
the  vast  machinery  of  industry,  so  necessary  to  civilization,  is 
chiefly  set  in  motion  by  the  wants  of  man  to  satisfy  his  appe- 
tite, far  more  so  than  by  the  want  of  protecting  his  body  or 
the  necessity  of  clothing  and  housing.  C  est  la  f aim,  c  est  le  petit 
ventre  qui  fait  mouvoir  le  inonde,  said  Napoleon  (Las  Cases, 
vol.  V.  p.  32,  Paris  edit,  of  1824).  But  is,  on  this  account,  all  in- 
dustry a  mere  matter  of  the  belly  ?  There  are,  at  times,  higher 
considerations  than  those  of  our  family  and  our  country;  but 
take  these  elements  away,  and  you  blot  out  at  once  a  thou- 
sand of  our  noblest  emotions,  most  effective  agents  of  the 
moral  world,  and  surest  principles  of  society.     There  is  much 


■  Summarium  Constitutionum,  \  8,  in  the  Corpus  Institutorum  Societatis  Jesu, 
Antvverpise,  1709,  t.  i. 

*  Orlandinus,  iii.  66,  mentions  the  case.     The  Jiisuil's  name  was  Faber. 


144  ^-^^  STATE. 

truth  in  the  remark  of  Madame  de  Stael,  that "  it  is  necessary 
to  make  the  choice  of  our  object  with  enthusiasm  (if  we  only 
understand  this  word  right),  but  we  must  march  towards  it  by 
the  aid  of  character.  Thought  is  nothing  without  enthu- 
siasm, nor  action  without  character.  Enthusiasm  is  every- 
thing for  literary  nations  ;  character  is  everything  for  acting 
nations;  free  nations  are  in  need  of  one  and  the  other."  ^  And 
what  kindles  this  enthusiasm,  by  which  we  are  to  understand 
an  inspired  attacliment  to  what  is  good  and  great,  independ- 
ent of  the  calculations  of  interest?  Chiefly  the  family  and  a 
noble  and  inspiring  history  of  our  own  nation. 

If  ancient  philosophers  maintain  that,  according  to  the 
example  of  the  Lacedaemonians,  the  family  ought  to  be  abol- 
ished, and  even  Plato,  in  his  Republic,  proposes  to  take  the 
new-born  babes  from  the  parents  of  the  first  class  of  citizens 
who  had  been  previously  united  by  the  state,  with  a  view  of 
propagating  a  sound  race,  it  will  be  easy  to  understand  them, 
after  we  shall  have  seen  the  essential  difference  between  the 
views  which  the  ancients  took  of  the  state  and  its  object,  and 
those  of  modern  times.  When,  however,  modern  writers  pro- 
pose a  similar  annihilation  of  the  family,  as  some  actually  have 
done,  it  only  shows  that  they  have  no  correct  views  of  man's 
individual  value,  of  the  family,  and  of  what  they  ought  to  be 
in  modern  times,  or  that  they  have  proposed  a  false  remedy 
for  the  existing  evils  in  private  education. 


»  De  rAUemagne,  par  Mme.  de  Stael-Holstein,  Paris,  l8io,  tome  vi.  p.  90. 


CHAPTER   IV. 

What  is  the  State? — By  what  Characteristics  does  it  differ  from  the  Family? — 
The  State  a  Society. — Various  Human  Societies,  according  to  the  various  Re- 
lations.— Relations  of  Consanguinity,  Exchange,  Comity,  Intellectual  Commu- 
nion, of  Right. — What  is  Right  ? — The  State  is  the  Society  of  Right. — The 
Just  is  its  Fundamental  Idea. — Objects  of  the  State. — What  is  Protection  ? — 
The  State  requires  General  Rules;  its  Members  are  not  absorbed  by  it;  every 
one  has  Claims  upon  it ;  it  is  a  Moral  Society ;  it  exists  of  Necessity. — The 
State  remains  a  Means. — The  Individual  above  the  State  ;  the  State  above  the 
Individual. — The  State,  as  such,  has  Rights  and  Obligations ;  the  State  does 
not  make  Rights,  but  acknowledges  them. — Civilized  States  far  the  most 
powerful. — Man  by  Nature  a  Political  Being. — Man  never  exists  without  the 
State. — The  State  is  no  Insurance  Company. — Protection  of  Life  and  Property 
not  the  only  Objects,  nor  the  highest. 

XXVIII.  The  family,  however  important,  is  not  a  suffi- 
ciently extended  society  to  lead  man  to  his  great  destiny — to 
civilization.  Men  must  live  in  wider  unions,  they  have  to 
establish  relations  and  to  develop  ideas,  which  can  never  be 
fully  obtained  in  the  family  alone.  A  union  of  a  different 
character  is  required — it  is  called  the  State.  The  prevailing 
idea  in  the  family,  that  determines  the  character  of  the  inter- 
course between  the  members,  is  mutual  attachment  depending 
on  personal  relations,  to  which  man  is  first  induced  by  the 
ties  of  consanguinity,  on  kindness  and  forbearance,  on  a  de- 
gree of  disregard  of  one's  own  personal  considerations.  That 
which  rendei"s  the  family  so  admirable,  so  holy,  is  love,  and  a 
continued  forgetfulness  of  a  separate  individual  interest.  The 
fundamental  idea  of  the  state,  on  the  other  hand,  is  justice, 
the  right  which  exists  between  man  and  man.  That  which 
renders  the  state  so  great  and  important  is,  that  it  maintains 
right,  protects  and  is  a  continual  guard  over  the  individual 
right  of  every  one ;  that  it  demands  of  no  member  an  obliga- 
tion on  his  side  alone,  but  knows  of  mutual  obligations  only. 
There  shall  be  no  duty  in  the  state  for  the  performance  of 

lo  145 


146 


THE  STATE. 


which  the  citizen  does  not  receive  an  equivalent.  Family  and 
state,  then,  do  not  only  differ  as  to  size,  but  they  differ  in  their 
characteristics  and  essentials,  whatever  confusion  to  the  con- 
trary may  in  many  parts  of  the  world  exist.  The  monarch  is 
frequently  represented  as  the  father  of  his  subjects ;  and  this 
misrepresentation  alone  has  caused  mankind  to  pass  through 
infinite  suffering.  In  few  instances  has  the  danger  of  analogy 
shown  itself  more  banefully  than  in  this.  It  has  induced  peo- 
ple to  establish  claims,  or  to  submit  to  them,  which  are  cal- 
culated to  throw  society  into  disorder,  and  to  lead  it  to  those 
disastrous  consequences  which  never  fail  to  be  the  effect  of 
mistaken  notions  respecting  elementary  principles  of  society.' 
Still,  I  do  not  mean  to  say  that  in  the  course  of  civilization 
stages  were  not  necessary,  in  which  the  ideas  of  family  and 
state  were  yet  closely  interwoven  with  one  another,  and  were 
mixed  up  in  the  patriarch;  nor  that  the  state  in  many  in- 
stances actually  did  not  grow  out  of  the  family.  The  Asiatic 
nations  prove  this  fact.  The  family  grows  into  a  tribe,  the 
tribe  into  a  nation  ;  ^  and  even  with  those  nations  and  states 
which  originated  from  a  fusion  of  many  discordant  elements, 
as  the  noble  people  of  Attica  out  of  the  mixture  of  Pelasgi, 


^  *  [From  a  long  paper  left  by  Dr.  Lieber  we  select  the  following  passages  :] 
If  the  principle  of  the  family  is  applied  to  a  state  of  any  extent,  in  which  per- 
sonal acquaintance  and  attachment  of  some  degree  becomes  impossible,  if  the 
patria  potestas  is  applied  to  the  state,  or,  as  thp  Chinese  say,  filial  duty  is  the 
base  of  the  state,  it  cannot  otherwise  than  lead  to  absolutism  and  tyranny.  For 
we  have  seen  that  one  of  the  characteristics  of  the  family  is  the  discarding  of 
strict  right  and  the  adhering  to  mutual  attachment,  while  the  just  authority  of  the 
parent  is  restricted  only  by  this  personal  attachment  and  the  natural  relations  of 
consanguinity.  But  this  personal  attachment  cannot  exist  in  an  extensive  state, 
and  but  in  a  very  limited  degree  in  the  smallest  one,  so  that  nothing  remains  but 
unlimited  authority  without  the  moral  control  existing  in  the  parental  relation. 
[He  then  illustrates  what  he  has  said  by  the  state  of  things  in  China,  citing 
especially  Davis's  Chinese,  u.  s.  i.  202.] 

2  I  know  of  no  more  striking  instance  of  divisions  and  subdivisions  according 
to  family  relationship,  and  a  government  founded  upon  it,  than  the  one  described 
by  the  Hon.  Mountstuart  Elphinstone,  in  his  Account  of  the  Kingdom  of  Caubul, 
etc.,  London,  1815,  chap.  ii.  p.  158,  et  seq.  Mr.  Elphinstone  was  sent  as  envoy 
to  the  kin<^  of  Caubul.     The  work  is  valuable  in  many  respects.     . 


VARIOUS  SOCIETIES. 


147 


lonians,  and  others,  and  the  British  nation  out  of  Britons,  Ro- 
mans, Saxons,  Danes,  and  Normans,  the  state  grew  originally 
out  of  the  family,  in  so  far  as  the  idea  of  justice  grew  with  its 
enlargement;  but  everything,  every  institution,  every  art, 
every  science,  begins  in  an  undefined  state,  mixed  up  with 
others,  and  is  more  distinctly  developed  only  with  the  pro- 
gress of  civilization.  Medicine,  architecture,  and  the  ministry 
are,  at  present,  questionless  three  very  distinct  employments, 
though  originally  all  three  were  united  and  undistinguished 
from  one  another  in  the  priest.  Painting  and  writing  were  at 
first  the  same  thing,  they  are  now  essentially  different  things. 

XXIX.  Again,  what  is  the  state?  All  civilized  nations  are 
now  agreed  that  the  state  is  a  society ;  no  man  will  be  so 
bold  as  to  pretend  that  an  individual,  a  monarch,  can  be  the 
state,  as  Louis  XIV.,  when  a  boy,  asserted  of  himself  As 
to  the  essential  character  of  the  state,  however,  its  true  foun- 
dation and  origin,  its  aim  and  object,  power  and  extent,  peo- 
ple are  not  agreed.  Let  us  see  whether  it  be  not  possible  to 
arrive  at  a  satisfactory  answer  to  so  momentous  a  question. 

The  state  is  a  society.  What  is  a  society  ?  A  society  is  a 
number  of  individuals  between  all  of  whom  exists  the  same 
relation — the  same  as  to  its  principle,  however  modified  it 
may  be  in  other  respects  ;  or  it  is  a  number  of  individuals 
who  have  the  same  interest  and  strive  unitedly  for  it.  The 
individuals  or  members  of  a  society  exercise,  therefore,  a 
more  or  less  intense  influence  upon  one  another.  The  Cath- 
olic Church  is  a  society ;  between  all  members,  the  cardinal 
and  lowest  layman,  exists  the  relation  of  religion  and  the  same 
religious  discipline.  These  fundamental  relations  constitute 
the  peculiar  character  of  the  society,  and  are  called  its  ties. 
Societies  may  be  temporary  unions  with  stated  objects,  or 
they  may  rest  on  relations  not  entirely  or  not  at  all  control- 
lable by  the  members — on  given  relations,  with  general  objects 
chiefly  to  be  learned  from  the  fundamental  relations  them- 
selves between  the  members.  By  way  of  greater  distinction, 
I  would  call  the  former  associations  companies,  the  latter, 


148 


THE  STATE. 


by  way  of  excellence,  societies.  Insurance  companies,  chari- 
table societies,  academies  of  science,  are  associations;  nations, 
states,  communities,  are  societies. 

Now,  all  the  relations  in  which  man  may  be  placed  are : 

Relations  to  things,  comprehending  within  this  term  ani- 
mate and  inanimate  things.  Property,  as  we  have  seen,  rests 
on  one  of  these  relations. 

Relations  between  man  and  man. 

Relations  between  man  as  the  creature,  the  made  being, 
and  his  Creator  or  Maker,  or  between  man  as  the  inferior 
and  guided  being,  and  the  superior  and  guiding  being.  All 
that  appertains  to  these  relations  is  included  in  the  compre- 
hensive term  of  religion. 

The  chief  relations  between  man  and  man  seem  to  be 
these  : 

1,  The  relation  of  consanguinity.  One  of  the  societies 
resting  on  this  relation  is  the  family. 

2.  The  relation  of  exchange.  Labor  must  be  divided,  as 
we  have  seen,  and  men  stand  in  constant  need  of  each  other 
according  to  the  individual  and  territorial  division  of  labor. 
The  shoemaker  must  have  bread  from  the  baker;  the  German 
wants  rice  from  the  Carolinian,  and  sends  linen  to  the  South 
American.  Let  us  call  this  the  catallactic  or  diallactic  rela- 
tion, from  y.araXXd(7(TU),  ov  diaX)A<Taw,  to  exchange.  Catallactics 
is  far  the  best  name  which  has  been  proposed  for  political 
economy.  The  name  is  peculiarly  apt,  for  the  Greek  word 
does  not  only  mean  to  exchange,  but  also  to  exchange  hatred, 
to  reconcile,  and  what  reconciles  man  to  man,  nation  to  nation, 
more  powerfully  and  originally  than  the  exchange  of  their 
produce  ?  By  the  catallactic  relation  I  understand  the  ex- 
change of  labor,  produce,  service,  capital,  and  skill,  by  way  of 
value,  in  the  sense  in  which  it  is  taken  in  political  economy, 
not  the  exchange  of  thoughts,  sentiments,  discoveries.  The 
catallactic  relations  form  one  of  the  original,  most  enduring, 
active,  and    indestructible   ties   of  society,  and   the   society 


RELATIONS   OF  SOCIETY. 


149 


founded  upon  it  has,  consequently,  been  mistaken  for  the 
state.  Plato  commits  this  error,  and  when  he  supposes  that 
he  shows  the  origin  and  true  character  of  the  state  (in  the 
second  book  of  his  Republic),  he  only  shows  the  origin  of 
the  catallactic  society ;  but  this  society  may  be  narrower  or 
wider  than  the  state.  Nothing  is  more  common  than  that 
the  citizens  on  the  frontier  of  one  state  have  a  constant  catal- 
lactic intercourse  with  their  neighbors  of  another  state,  and 
hardly  any  with  their  fellow-citizens  of  the  interior.  That 
Plato  committed  this  error  can  easily  be  accounted  for.  Most 
Greek  states  were  cities  ;  they  had  but  one  word  for  both  ; 
the  idea  of  a  city  community  was  ever  before  his  eyes  when 
he  reasoned  on  the  state.  It  is  very  difficult  to  elevate  our- 
selves above  associations  which  have  their  foundation  in 
everything  that  surrounds  us.  Thus,  the  fact  that  in  Europe, 
or  on  the  whole  earth,  there  are  far  more  monarchies  than 
republics,  has,  with  few  exceptions,  strongly  affected  all  the 
reasoning  of  European  writers  on  the  state  so  decidedly,  that 
the  effect  extends  to  their  arguments  on  the  origin  of  the 
state.  No  one  can  study  Plobbes  without  perceiving  it.  Sub- 
ject and  citizen  are  inadvertently  used  by  many  as  convert- 
ible terms.  Yet  monarchy,  republic,  despotism,  etc.,  are  but 
subdivisions  of  the  same  class." 

3.  The  relation  of  comity,  under  which  I  comprehend  all 
that  is  called,  in  common  parlance,  social  intercourse,  with 
all  the  views,  opinions,  enjoyments,  prejudices,  and  sufferings 
connected  therewith. 

4.  The  intellectual  relations,  to  which  belong  the  many 
strong;    ties    which    grow    out    of  a    constant    exchange    of 


'  *  The  fact  that  Rousseau  lived  in  a  small  republic,  with  much  of  a  demo- 
cratic element  in  it,  influenced  his  writings  much :  his  Social  Contract  would 
never  have  formed  itself  as  it  is  in  a  large  state.  How  much  have  the  United 
States  affected  me  ?  The  fact  that  I  live  in  a  large  republic  was  probably  favor- 
able. Perhaps  I  too  am  unconsciously  affected.  Yet  I  have  lived  under  many 
other  governments,  and  where  there  was  none  at  all — in  Greece. 


1^0  THE  STATE. 

thoughts,  feelings,  and  taste,  as  uttered  in  speaking  or  writ- 
ing, the  strong  ties  of  a  common  language  and  literature,  of 
the  fine  arts,  sciences,  and  national  custom.  The  society- 
founded  on  this  relation  extends,  in  Germany  for  instance, 
far  beyond  the  states.  It  is  very  naturally  the  strongest  of 
all  ties  in-  the  general  course  of  things.  Sometimes  pecu- 
liar reasons  will  make  other  relations  for  a  time  more  active. 
A  bond  which  frequently  rivals  it  is  the  relation  of  religion ; 
both  strongly  affect  the  inner  man— his  feelings,  and  therefore 
the  direction  of  his  thoughts.  The  Belgians  felt  more  sym- 
pathy with  the  French,  as  long  as  they  belonged  to  the  king- 
dom of  the  Netherlands,  than  with  the  Dutch. 

5.  The  relation  of  right.     The  society  founded  upon  this 
relation  is  the  state.     What  is  right  ? 

XXX.  Man,  it  has  been  shown,  is  a  moral  individual,  yet 
bound  to  live  in  society.  He  is  a  being  with  free  agency — 
freedom  of  action ;  but,  as  all  his  fellow-men  with  whom  he 
lives  in  contact  are  equally  beings  with  free  agency,  each 
making  the  same  claim  of  freedom  of  action,  there  results 
from  it  the  necessity,  founded  in  reason,  i.e.  the  law,  that  the 
use  of  freedom  by  one  rational  being  must  not  contradict  or 
counteract  the  use  of  liberty  by  another  rational  being.  The 
relation  which  thus  exists  between  these  rational  beings,  this 
demand  of  what  is  just  made  by  each  upon  each,  is  the  rela- 
tion oi  right ;  and  the  society  founded  upon  this  basis,  which 
exists  because  right  [jus)  in  its  primordial  sense  exists  and 
ought  to  exist  between  men,  which  has  to  uphold  and  insist 
upon  it,  which  has  to  enforce  it,  since  every  man  has  a  right 
to  be  a  man,  that  is,  a  free-acting  or  rational  being,  because 
he  is  a  man — this  society  is  the  state. 

Right  is  that  which  I  claim  as  just,  because  necessary  to 
me  as  man  and  granted  by  me  to  others ;  it  is  the  condition 
of  men's  union,  that  by  which  man's  individuality  or  person- 
ality on  the  one  hand,  and  sociality  on  the  other,  can  coexist. 
This  is  the  most  comprehensive  meaning  of  the  word,  and 


THE  STATE  MUST  PROTECT. 


151 


applies  to  what  I  have  called  the  society  of  comity  as  well  as 
to  the  state.  We  say,  as  to  social  intercourse,  every  man  has 
a  right  to  call  on  another.  What,  then,  are  the  rights,  in  par- 
ticular, on  which  the  state  is  built?  Are  the  relations  of 
social  intercourse  unimportant?  Far  from  it;  in  many  cases 
they  are  of  utmost  importance  to  the  whole  well-being  of 
man,  and  even  outweigh  the  relations  of  which  the  state  takes 
notice  by  positive  law.  A  negro  may,  according  to  the  con- 
stitution of  some  of  the  United  States,  vote,  and  is  not  legally 
prevented  from  obtaining  any  the  highest  office,  or  from  be- 
coming among  other  things  teacher  in  a  university ;  he  has 
the  political  right  or  the  right  guaranteed  by  the  state.  Yet 
there  is  for  the  present  no  earthly  chance  for  a  colored  man 
to  become  mayor  of  Boston,  because  the  society  of  comity 
denies  him  the  right;  the  white  race  feel  repugnance  at  close 
association  with  him  ;  the  difference  of  race  has  established 
in  a  degree  a  difference  of  sympathy.  Should  then  not  the 
state  enforce  this  right  of  the  negro  ?  Enforce  what?  Oblige 
whites  to  invite  the  African  ?  Would  not  the  whites  complain 
of  interference  with  their  right  of  being  perfectly  independent 
at  home  ?  And  here  we  have  arrived  at  the  proper  distinc- 
tion. 

The  state  is  founded  on  those  rights  which  are  essential  to 
all  members,  and  which  can  be  enforced.  Political  enfran- 
chisement was  for  a  long  time  not  as  important  to  the  Jews 
in  P^urope  as  social  enfranchisement;  in  fact,  they  justly  con- 
sidered the  former  but  as  the  stepping-stone  to  the  latter ; 
still,  the  latter  could  be  made  no  state  relation,  it  could  not 
be  legislated  upon.  Frequently  it  will  happen  that  social 
rights  finally  become  acknowledged  by  the  state ;  so  will 
rights  originally  belonging  to  catallactic  society.  We  call 
rights,  by  way  of  excellence,  those  rights  on  which  the  state 
is  founded,  or  enforceable  rights. 

The  state,  then,  is  that  society  which  has  to  protect  the  free 
action  of  every  one,  as  its  first  basis  ;  and,  as  all  the  other 
enumerated  relations  imply  action  (for  with  the  exception  of 
the  relation  of  consanguinity  all  manifest  themselves  in  somf^ 


152 


THE  STATE. 


way  or  other  by  action),  each  of  these  relations  becomes  Hke- 
wise  a  relation  of  right,  either  claiming  to  be  enforced  or  to 
be  protected  against  infringement.  If  a  father  amuses  his 
children  with  soap-bubbles,  it  is  an  action  of  a  very  private 
character  indeed ;  yet  the  moment  that  another  would  wilfully 
interfere,  the  state  is  bound  to  protect  the  father.  A  cat  is, 
generally  speaking,  a  subject  of  no  public  intej-est,  but  actions 
have  been  brought  and  sustained  against  the  wilful  destroyers 
of  a  favorite  cat.  The  exchange  of  my  labor  or  superfluity 
for  other  commodities  must  be  protected.  My  fancies,  my 
very  follies,  if  they  do  not  interfere  with  the  rights  of  others, 
must  be  protected.  However  droll  a  will  may  be,  if  not  im- 
moral, it  must  be  protected.  In  this  sense  the  state  is  the 
society  of  societies.  The  state  does  not  beg,  invite,  request, 
implore — the  state  demands,  it  speaks  through  laws,  laws 
which  command,  that  is,  which  must  be  obeyed.  If  it  were 
to  ask  something  for  the  sake  of  love,  or  good  will,  of  one,  it 
would  neglect  the  other,  whose  right  may  have  been  trans- 
gressed, or  whose  right  may  be  involved  in  the  execution  of 
the  law. 

XXXI.  The  state,  I  said,  is  founded  on  the  relations  of 
right;  it  is  a  Jural"-  society,  as  a  church  is  a  religious  society. 


'  If  there  is  no  word  which  distinctly  represents  our  idea,  to  express  which  we 
nevertheless  consider  of  much  importance,  a  new  one  must  necessarily  be  made, 
or  we  slavishly  subject  the  mind  to  the  language,  the  object  to  the  means.  How 
else  is  the  idea  to  be  expressed  ?  Should  I  say  that  the  state  is  a  political  so- 
ciety ?  This  is  nothing  but  arguing  in  a  circle,  which  would  be  at  once  appa- 
rent had  we  adopted  the  Greek  for  the  noun  as  well  as  the  adjective,  and  were 
to  say,  poNs  is  a  political  society.  No  doubt  it  is;  so  is  a  cat  a  feline  animal, 
and  sugar  a  saccharine  substance.  I  stood  in  need  of  a  word  which  bears  the 
same  relation  to  state,  as  society,  that  the  word  religious  has  to  church.  The 
church  is  a  religious  society.  We  would  express  nothing  by  stating  that  the 
church  (ecclesia)  is  an  ecclesiastical  society.  If  the  word  is  not  in  good  taste,  if 
it  does  not  strike  the  ear  well,  I  can  only  say,  I  could  find  no  better  one  than 
this,  similar  to  rural  from  rus.  The  Greek  language  has  no  difi'erent  words  for 
lex  and  jus,  vimog,  as  the  English  has  but  law,  while  the  French  have  droit  and 
loi,  the  Germans  J^echt  and  Geselz.  The  word  legal,  it  will  at  once  be  sei;n,  signi- 
fies something   entirely  different  from  jural.     Jural  relations  exist  before  and 


THE  STATE  A    JURAL   SOCIETY.  153 

or  an  insurance  company  a  financial  association.  The  idea 
of  the  just,  and  the  action  founded  upon  this  idea,  called 
justice,  is  the  broad  foundation  and  great  object  of  the  state. 
Bracton  '  says,  "  Quia  a  justitia  (quasi  a  quodam  fonte)  omnia 
jura  emanant,  et  quod  vult  justitia,  idem  jus  prosequitur: 
videamus  ergo  quid  sit  justitia  et  unde  dicatur:  Item  quid 
sit  jus  et  unde  dicatur  et  quae  sunt  ejus  praecepta."  It  is 
very  easy  to  write  nowadays  better  Latin  than  this  old  jurist, 
but  not  to  write  better  sense  than  this.  Our  idea  of  what  the 
state  is,  is  precisely  expressed  by  Cicero  (de  Republ,  i.  32), 


without  laws.  The  very  want  of  words  has  misled  many  who  have  written  on 
tlie  subject;  as  if  right  were  made  by  law;  rights,  privileges  are  made,  but  not 
right,  jus — the  ccquitas  communis ,  (sqitum  universale. 

I  ask  permission  to  quote  here  an  extract  from  a  work  of  that  acute  reasoner, 
St.  Augustine,  being  in  point  as  to  the  subject  of  the  above  paragraph  : 

"  Quapropter  nunc  est  locus,  ut  quam  potero  breviter  ac  dilucide  expediam 
quod  in  secundo  hujus  operis  libro  me  demonstraturum  esse  promisi,  secundum 
definitiones,  quibus  apud  Ciceronem  utitur  Scipio  in  libris  de  republica,  num- 
quam  rempublicam  fuisse  Romanam.  Breviter  enim  rempublicam  definit  esse 
rem  populi.  Quse  definitio  si  vera  est,  numquam  fuit  Romana  respublica;  quia 
numquam  fuit  res  populi ;  quam  definitionem  voluit  esse  reipublicjs.  Populum 
enim  esse  definivit  coelum  multitudinis,  juris  consensu  et  utilitatis  communione  so- 
ciatum.  Quid  autem  dicat  juris  consensum  disputando  explicat ;  per  hoc  osten- 
dens  geri  sine  justitia  non  posse  rempublicam  ;  ubi  ergo  justitia  vera  non  est,  nee 
jus  potest  esse.  Quod  enim  jure  fit,  profecto  juste  fit.  Quod  autem  fit  injuste, 
nee  jure  fieri  potest.  Non  enim  jura  dicenda  sunt  vel  putanda  iniqua  hominum 
constituta;  cum  illud  etiam  ipsi  jus  esse  dicant,  quod  de  justitiae  fonte  manaverit; 
falsumque  esse  quod  a  quibusdam  non  recte  sentientil^us  dici  solet,  id  esse  jus, 
quod  ei  qui  plus  potest,  utile  est.  Quocirca  ubi  non  est  vera  justitia,  juris  con- 
sensu societas  ccetus  hominum  non  potest  esse;  et  ideo  nee  populus,  juxta  illam 
Scipionis  vel  Ciceronis  definitionem,  et  si  non  populus,  nee  res  populi ;  sed  qualis- 
cumque  multitudinis,  quse  populi  nomine  digna  non  est.  Ac  per  hoc  si  respub- 
lica res  populi  est,  et  populus  non  est  qui  consensu  non  sociatus  est  juris,  non  est 
autem  jus,  ubi  nulla  justitia  est ;  procul  dubio  eolligitur,,  ubi  justitia  non  est,  non 
esse  rempublicam.  Justitia  porro  ea  virtus  est  quae  sua  cuique  distribuit.  Quds 
igitur  justitia  est  hominis,  quae  ipsum  hominem  Deo  vero  tollit  et  immundis  da2- 
monibus  subdit  ?  Hoccine  est  sua  cuique  distribuere  ?  An  qui  fundum  aufert 
ei  a  quo  emptus  est,  et  tradit  ei  qui  nihil  in  eo  habet  juris,  injustus  est;  et  qui 
se  ipsum  aufert  dominanti  Deo,  a  quo  faetus  est,  et  malignis  servit  spiritibus 
Justus  est?"    De  Civitate  Dei,  lib.  xix.  cap.  21. 

'  Henry  Bracton,  who  lived  in  the  thirteenth  century,  De  Legibus  etConsuetu- 
dinibus  Anglice,  lib.  iv.  c.  4. 


154  THE  STATE. 

"Quid  enim  est  civitas  nisi  juris  societas  ?"  More  pithily  it 
has  been  expressed  by  Cousin  (Cours  d'Hist.  de  la  Philos., 
Paris,  1828,  p.  14),  "La  justice  constituee,  c'est  letat."  Of 
this  justice  let  us  adopt  Ulpian's  definition,  "  constans  et  per- 
petua  voluntas  suum  cuique  tribuens,"  provided  we  under- 
stand by  voluntas  not  potentia  volendi  sed  actus,  and  connect 
with  suum  cuique  not  the  limited  view  of  property  or  personal 
safety,  but  this  and  much  more,  namely,  the  great  object  of 
society,  of  which  more  presently.  See  also  the  interesting 
account  of  the  jural  origin  and  character  of  the  state  in  Herod., 
i.  96,  et  seq.  Whether  true  or  not,  it  presents  the  views  of 
the  people  at  that  early  period.^ 


'  I  will  transcribe  the  translation  of  this  very  curious  passage :  "  There  was  a 
man  among  the  Medes  of  the  name  of  Deioces,  a  son  of  Phraortes,  of  great  wis- 
dom, who  longed  for  power,  and  he  acted  thus :  The  Medes  lived  about  in  their 
hamlets,  and  as  he  enjoyed  already  great  reputation  in  his  own,  he  practised  jus- 
tice still  more  attentively  and  zealously.  And  this  he  did,  because  lawlessness 
was  great  throughout  Media,  and  he  knew  well  how  the  just  hated  injustice. 
And  the  Medes  of  his  place,  as  they  saw  how  he  did,  made  him  their  judge,  and 
because  his  eyes  were  directed  to  the  supreme  place,  he  acted  fairly  and  justly, 
by  which  he  gained  no  little  praise  with  his  fellow-citizens,  so  that  those  who 
lived  in  the  other  hamlets,  when  they  learned  how  Deioces  judged  according  to 
justice  only,  since  they  themselves  had  suffered  already  by  unjust  sentences 
when  they  heard  of  this,  went  with  pleasure  to  Deioces,  that  he  might  give  judg- 
ment to  them  too,  and  at  length  they  went  to  no  one  else  any  longer.  But  when 
the  number  of  those  who  repaired  to  him  went  on  increasing,  because  they  per- 
ceived that  his  sentences  were  always  according  to  wisdom,  and  Deioces  saw 
that  everything  depended  upon  him,  he  declined  any  longer  to  sit  in  judgment, 
and  said  that  he  would  not  any  longer  be  judge ;  for  he  had  no  leisure  to  decide 
cases  for  others  every  day  and  thus  to  neglect  his  own  affairs.  When  after  this, 
violence  and  lawlessness  in  the  places  about  became  worse  than  before,  the 
Medes  assembled,  and  held  council  with  one  another,  and  consulted  on  their 
situation.  The  friends  of  Deioces  may,  as  it  seems  to  me,  have  spoken  thus  :  '  If 
things  remain  as  they  are  now,  we  cannot  dwell  any  longer  in  our  land.  Up, 
then !  let  us  elect  a  king,  and  our  land  will  be  ruled  according  to  right,  and  we 
may  go  to  our  work,  and  we  need  not  leave  our  country  on  account  of  lawless- 
ness.' Thus  they  spake,  and  persuaded  the  Medes,  so  that  they  elected  them- 
selves a  king.  And  soon  they  consulted  whom  they  would  place  above  themselves 
as  king,  and  Deioces  was  proposed  on  all  hands,  and  much  praised,  until  at 
length  they  unanimously  resolved  he  should  be  their  king."  Perhaps  it  is  worth 
while  to  mention  here  that  the  ancient  jurists  of  Aragon  believed,  according  to  a 
tradition,  that  the  famous  institution  of  the  jiisticia  originated  at  the  same  time 


THE   JUST,   THE  BASIS   OF  THE  STATE.  155 

At  all  times  has  justice  been  considered  as  the  main,  or 
one  of  the  chief  objects  of  the  state,  though,  in  many  in- 
stances, by  justice  nothing  more  than  protection  of  person  and 
property,  or  rather  punishment  of  offenders,  was  understood/ 
To  protect  the  widows  and  orphans  (that  is,  the  weak)  was  in- 
variably given  as  one  of  the  chief  reasons  why  power — the 
sword — had  been  given  to  monarchs.  "  The  saints  have  said 
that  the  king  is  placed  on  earth  in  place  of  God  to  fulfil  jus- 
tice and  to  give  to  every  one  his  right  and  due  {su  derccho), 
and  as  the  soul  is  in  the  heart  and  gives  it  life,  so  is  justice 
in  the  king,"  ^  was  the  Spanish  view  at  the  times  of  Columbus. 
Every  coronation  oath,  every  admonition  of  monarchs,  points 
to  it  from  early  times.  (See  the  Civil  Law,  and  Luther  on  the 
Duties  of  a  Prince  in  vol.  v.  p.  1041,  et  seq.)  Even  Timur, 
while  he  praises  his  government  chiefly  for  having  admin- 
istered justice  and  supported  religion,  founds  even  his  right 
of  conquest  on  justice,  to  expel  iniquity,  tyranny,  and  oppres- 
sion.3  Hence  the  early  and  universal  distinction  between  the 
individual  invested  with  the  crown  and  the  regal  office  itself, 
notwithstanding  the  extravagant  and  not  unfrequently  ab- 
surd theories,  which  strive  absolutely  to  confound  the  per- 
son of  the  king  and  his  office,  to  the  contrary.  Whatever  may 
be  advanced  under  the  hallucination  of  divine  absolutism,  it  is 
impossible  to  carry  out  the  theory,  and  no  principle  of  gov- 


with  the  election  of  the  king.  Thus  wrote  Juan  Ximenez  Cerdan,  a  most  es- 
teemed Aragonese  publicist,  in  I435,  to  the  justicia.  According  to  some,  the 
justicia  was  elected  before  the  king.     (E.  A.  Schmidt,  Gesch.  Arag.,  p.  409.) 

*  It  is  interesting,  on  this  account,  among  so  many  others,  to  read  large  and 
contiguous  collections  of  the  charters,  compacts,  etc.,  of  a  nation,  such  as,  Re- 
cueil  General  des  anciennes  lois  Fran^ais  depuis  I'An  420  jusqu'a  la  Revolution 
de  1789,  by  Decrusy,  Isambert,  and  Jourdan,  Paris. 

*  This  passage  is  contained  in  the  appointment  of  Columbus  as  Admiral  of  the 
Indies,  to  be  found  in  the  Codice  Diplomatico  Colombo-Americano  ossia  Rac- 
colta  di  Document!  original!  e  inediti  spettanti  a  Cristofoio  Colombo,  alia  sco- 
perta  ed  al  governo  dell'  America,  Genova,  1823,  4to,  pages  47  and  63. 

3  Institutes,  Political  and  Military,  written  originally  in  the  Mogul  Language 
by  the  Great  Timour,  first  translated  into  Persian,  etc.,  and  thence  into  English, 
by  Major  Davy,  Persian  Secretary  to  the  Commander-in-Chief  of  the  Bengal 
Forces,  Oxford,  17S3,  4to,  page  331. 


156  THE  STATE. 

ernment  proves  the  distinction  more  clearly  than  absolutism 
itself.  Suppose  an  absolute  king  to  be  attacked  by  a  violent 
fever;  he  raves;  the  physician  orders  him  to  be  held,  and 
does  the  very  contrary  from  what  the  delirious  monarch  de- 
mands. Is  there  in  this  case  no  difference  between  monarch 
and  crown  ?  Suppose,  farther,  the  king's  disease  ends  in 
derangement  of  mind,  the  successor  declares  himself  or  is  de- 
clared king,  or  regent.  Is  there  no  difference  made  between 
the  individual  and  the  crown  he  personates  ?  Whence  is  the 
right  derived  of  superseding  the  unfortunate  predecessor  ? 
He  still  exists  individually.  The  English  made  a  very  early 
distinction  between  a  resolution  in  the  king's  breast  and  a 
resolution  of  the  king  in  council,  or  voluntas  interna  seu  na- 
turalis  and  externa  seu  legalis.  (See  Hampden's  Trial  for 
ship-money.  State  Trials,  vol.  iii.  p.  861.)  So  distinctly  was 
the  difference  acknowledged  by  the  English  long  ago  that, 
though  all  justice  is  administered  in  the  monarch's  name,  his 
presence  at  the  trial  of  Earl  Strafford  was  not  considered  as 
official ;  because  "  in  his  presence,  by  legal  construction  (by  a 
most  philosophic  view),  no  judicial  act  could  legally  be  done." 
The  throne  was  empty,  and  Charles  was  in  a  box  with 
trellis-work.  But  Baillie  says  that  the  king  broke  down  the 
screens,  so  the  court  sat  in  the  eyes  of  all ;  yet  they  were  con- 
sidered officially  absent,  "  and  the  lords  sat  covered,"  (Baillie, 
principal  of  Glasgow  College,  was  present.)  The  parliament 
of  Paris  declared,  in  1648,  that  the  words,  sur  le  bon  plaisir  du 
roi  (or,  car  tel  est  notre  plaisir),  are  used  to  give  a  degree  of 
respect  to  the  government  of  the  king,  by  no  means  to  sanc- 
tion that  which  is  irrational,  or  to  signify  that  he  needs  no 
council.  (Portal.,  167.)  And  this  was  under  Mazarin,  imme- 
diately after  Richelieu's  administration. 

XXXII.  All  relations  existing  in  the  state,  or  all  strictly 
political  relations,  are  relations  of  right — jural  relations.  The 
individual  demands  of  the  state  that  his  right — his  jural  rela- 
tion to  others — be  maintained  inviolate,  and  the  state  demands 
that  the  individual  do  not  interfere  with  the  right  of  others. 


WHAT  PROTECTION  IS. 


157 


or,  in  other  words,  do  not  disturb  their  jural  relations.  Finally, 
the  individual,  being  unable  to  obtain  those  ends  for  which  he 
was  placed  on  earth  or  made  a  man,  in  a  state  of  insulation, 
but  being  compelled,  by  a  necessity  founded  in  his  very 
nature,  to  live  in  society,  it  is  matter  of  right  that  he  obtain 
through  and  conjointly  with  society  what  he  cannot  obtain 
singly,  and  what,  nevertheless,  is  essential  to  his  well-being 
as  man.  The  state,  therefore,  has  the  right  and  the  duty  to 
obtain  all  these  ends  by  the  combined  energy  of  society  for 
each  individual.  We  see  thus  that  protection  in  its  wide  and 
true  meaning,  not  in  its  narrow  sense,  signifying  nothing  more 
than  a  prevention  of  individual  injury — that  protection  is  the 
aim  and  object  of  the  state,  and  that  this  protection  is  but 
another  word  for  justice,  in  its  broad  adaptation,  the  obtain- 
ing and  granting  of  that  which  every  one  demands  of  right, 
and  as  moral  individual  ought  to  demand — his  due.  We  find 
thus  that  protection  includes: 

1.  Individual  security,  which  demands  two  things  : 

a.  Protection  against  individual  injury,  or  interference  with 
me  and  my  actions  individually,  that  is,  protection  of  life, 
limb,  labor,  property  (which  includes  the  owning  of  things 
and  the  acquiring  of  things,  or  use  and  appropriation  of 
things  unappropriated,  and  exchange),  utterance  or  converse 
(speech  and  writing),  honor  (or  reputation),  virtue,  religion, 
and  family  relations. 

b.  Making  certain  that  which  is  uncertain  ;  for  uncertainty 
in  matters  of  right  is  insecurity. 

2.  Social  security,  the  protection  of  society  as  such. 

3.  The  protection  of  each  member  as  that  being  who  cannot 
obtain  save  in  conjunction  with  others,  or  through  and  in 
society,  his  great  ends  of  humanity  —  those  ends  which  are 
necessary,  and  yet  cannot  be  obtained  by  the  single  man. 

XXXIII.  Every  man  is  a  being  who  has  a  moral  character 
of  his  own,  he  cannot  divest  himself  of  individuality,  and  yet 
he  is  what  he  ought  to  be  in  society  only.  These  three  points 
are  of  fundamental  importance  in  the  state.     If  men  have  to 


158  THE  STATE, 

live  together,  and  yet  must  remain  individuals,  with  individual 
pursuits,  individual  objects,  individual  desires  and  appetites,  it 
follows  that — 

1.  They  must  closely  unite  to  obtain  those  objects  which 
are  of  equal  importance  to  all. 

2.  They  must  follow  certain  rules  important  for  all,  with- 
out which  their  individual  interests  would  continually  clash 
with  one  another,  and  society  would  become  a  far  worse 
state  than  perfect  insulation.  Indeed,  it  is  impossible  to 
imagine  any  number  of  individuals  living  together  without 
observing  certain  rules,  nor  do  we  ever  find  any  such  society, 
for  whatever  purpose  its  members  may  have  united.  This 
necessity  of  observing  certain  rules  implies  the  necessity  of  a 
power  to  enforce  compliance.  Without  it,  the  rules  would  be 
useless  in  a  society  which  is  a  society  of  right,  and  exists  of 
necessity,  not  of  option,  nor  a  society  of  charity  or  love. 

3.  The  members  of  this  society  never  lose  their  individual 
character;  they  are  not  merged  in  the  state;  but  their  indi- 
vidual character,  and  with  it  those  things  which  are  necessary 
for  it  or  comprehended  in  it,  as  life,  free  agency,  or  freedom 
of  action,  that  is,  the  right  of  doing  everything  they  choose 
to  do,  provided  it  do  not  militate  with  the  freedom  of  action 
equally  claimed  by  others,  must  be  firmly  and  effectually  pro- 
tected. 

4.  Each  individual  has  an  undeniable  right  to  live  in  society 
and  to  share  its  advantages,  because  he  must  of  necessity 
live  in  society ;  and  absolute  necessity,  that  is,  that  necessity 
which  results  from  the  essential  nature  of  man,  is  the  first  of 
all  rights,  which  is,  in  other  words,  but  what  I  stated  above, 
when  I  said,  the  axiom  of  all  natural  law  is,  I  am  a  man, 
therefore  I  have  a  right  to  be  a  man.  Absolute  necessity  does 
not  make  right  —  a  sentence  often  misused  to  represent,  as 
right,  what  is  wrong,  though  expedient — but  absolute  neces- 
sity is  right. 

5.  The  state  being  a  jural  society,  and  rights  being  imagi- 
nable between  moral  beings  only,  it  follows  that  the  state  has 
likewise  a  moral  character  and  must  maintain  it.     From  what 


ESSENCE   OF  THE  STATE.  Ijg 

constitutes  right,  as  has  been  shown,  it  appears  that  no  right, 
consequently  no  specific  rights,  can  exist  between  animals  or 
irrational  beings,  since  the  right  is  founded  on  the  claim  each 
rational  or  moral  being  makes  on  every  other  rational  or 
moral  being. 

6.  Human  society  exists  of  necessity,  and  the  state  being 
part  of  the  human  society  (with  what  specific  characteristic, 
to  make  it  a  specific  state,  we  shall  see  presently),  in  which 
the  ideas  of  right  and  the  means  to  obtain  and  protect  it  are 
more  or  less  clearly  developed,  it  exists  likewise  of  necessity. 
Man  cannot  live  without  the  state ;  it  is  necessary  to  his 
nature  ;  the  state  is  one  of  the  natural  states  of  man.  This 
probably  was  meant  by  the  celebrated  Selden,  when  he  says, 
"  But  in  truth,  and  to  speak  without  perverse  affectation,  all 
laws  in  general  are  originally  equally  ancient.  All  were 
grounded  upon  nature,  and  no  nation  was,  that  out  of  it  took 
not  their  grounds  ;  and  nature  being  the  same  in  all,  the  be- 
ginning of  all  laws  must  be  the  same."  (Selden's  note  to 
Fortescue,  De  Laud.  Leg.  Angliae,  chap,  xviii.  note  g,  p.  33,  2d 
ed.,  1741.)  And  what  is  this  nature?  The  imprint  of  all 
created  things  stamped  upon  them  by  their  Creator ;  the  vital 
principle  of  life  he  laid  down  as  the  foundation  of  their  essence 
and  being.  "  Laws,"  says  Harrington,  in  his  Political  Aphor- 
isms, "are  founded  in  nature.  Nature  is  God."'  "In  the 
name  of  God,"  are  the  words  with  which  the  compact,  made  on 
board  the  May  Flower,  November  i  r,  1620,  begins.  (Charters 
and  Laws  of  the  Colony  of  New  Plymouth,  Boston,  Mass., 
1836,  p.  19.)  To  follow  nature,  thus  understood,  is  the  dcimt 
scqjii  of  Seneca. 

7.  The  state  always  remains  a  means,  yet  it  is  the  most 
indispensable  means  to  obtain  the  highest  end,  that  man  be 
truly  man.  The  salus  populi,  not  the  sahis  civitatis,  is  the 
suprema  lex.  The  state  exists  to  obtain  or  maintain  the  weal 
of  the  people ;  but  we  must  beware  not  to  give  a  mean  sig- 


'"Item  author  justitiae  est  deus,  secundum  quod  justitia  est  in   creatore.' 
Bracton,  de  Leg.  et  Consuet.  Anglias,  lib.  i.  c.  3. 


l6o  THE  STATE. 

nification,  perhaps  mere  physical  well-being,  to  this  term  of 
common  weal,  or  saliis  popiilL 

On  the  one  hand,  the  individual  stands  incalculably  higher 
than  the  state  ;  for  that  he  may  be  able  to  be  all  that  he  ought 
to  be,  the  state  exists,  and  each  individual  has  that  over  which 
the  state  can  never  extend,  because  it  cannot  be  drawn  into 
jural  relations,  and  because  it  will  outlive  the  state — the  soul. 
"  Over  the  soul  can  and  will  God  allow  no  one  to  rule  but 
himself  alone,"  says  Luther,^  who  had  no  extensive  views  of 
individual  civil  liberty  beyond  what  touched  the  religious 
liberties,  nor  could  it  well  be  expected  of  him. 

On  the  other  hand,  the  state  stands  incalculably  above  the 
individual,  is  worthy  of  every  sacrifice,  of  life  and  goods,  of 
wife  and  children,  for  it  is  the  society  of  societies,  the  sacred 
union  by  which  the  Creator  leads  man  to  civilization,  the  bond, 
the  pacifier,  the  humanizer,  of  men,  the  protector  of  all  under- 
takings in  which  and  through  which  the  individual  has  received 
its  character,  and  which  is  the  staff  and  shield  of  society.  Not 
that  I  am  guilty  of  the  egregious  folly  of  believing  that  every- 
thing in  the  state  is  good,  that  the  authorities  established  by 
the  state  may  not  sanction  unwise,  bad,  wicked  things.  "Jam 
vero  stultissimum  illud  existimare  omnia  justa  esse,  quae  sita 
sunt  in  populorum  institutis  aut  legibus"  (Cic,  de  Leg.,  i.  13); 
but  the  state,  as  the  chiefest  of  human  unions,  is  a  sacred  in- 
stitution, and  deserves  each  man's  faithful  devotion,  to  serve 
where  it  is  right,  to  improve  where  wrong, 

8,  The  state  existing  of  necessity,  and  it  being  each  man's 
natural  society,  it  follows  that  each  member  singly  owes  some 
duties  to  each  member  collectively,  and,  of  course,  all  mem- 
bers collectively  have  certain  rights  (and,  consequently,  duties) 
towards  each  man  singly.  Again,  that  as  the  individual  stands 
higher  than  the  state,  he  is  free  to  leave  it.  And  perhaps  it 
may  be  as  well  observed  here  as  in  any  other  place,  that  emi- 
gration does  not  necessarily  imply  want  of  patriotism.  Patri- 
otism not  unfrequently  causes  us  to  emigrate.     What  nation 


'  Luther  on  the  Duties  of  the  Subject  to  his  Magistrates. 


ESSENCE   OF   THE  STATE.  l6l 

loved  more  ardently  their  native  soil  and  state  than  the  Greeks? 
What  nation,  at  the  same  time,  was  ever  more  given  to  emi- 
gration than  the  Greeks  ?  They  lighted  indeed  the  sacred 
lamps  which  they  took  with  them  in  the  temple  of  their 
mother  city;  still,  they  emigrated.  The  Mahometans  have 
compasses  made  which  point  to  Mecca  (of  course,  with  ref- 
erence to  one  country  only);  there  are  many  emigrants  whose 
hearts  resemble  these  compasses,  and  you  would  be  unchari- 
table indeed  were  you  to  charge  every  emigrant,  because  he 
emigrates,  with  want  of  patriotism.  On  the  other  hand,  as 
the  state  is  infinitely  above  the  individual,  we  measure  not 
our  attachment  by  a  daily  account  and  balance  of  profit  and 
loss.  The  state  is  a  society  for  weal  and  woe.  "  Cum  bonis 
omnibus  coire  non  modo  salutis  verum  etiam  periculi  socie- 
tatem."     Cic,  pro  C.  Rabin,  7. 

9.  The  state  does  not  make  right ;^  it  protects  original 
rights,  and,  of  course,  in  so  doing,  modifies  their  mutual  oper- 
ation, and  in  order  to  protect  them  the  state  must  publicly 
acknowledge,  sanction  them,  limit  them,  or  confer  privileges. 
It  is  with  right  very  much  as  with  value.  The  agents  of  the 
state  may  place  a  stamp  on  precious  metals,  and  make  coiji, 
but  the  state  cannot  make  value.  (See  M'Culloch  on  Com- 
merce, and  others.)  So  did  the  council,  convened  by  Pope 
Julius  II.  to  oppose  the  one  assembled  at  Pisa,  declare  the 
necessity  of  the  belief  in  the  immortality  of  the  soul.  Star- 
tling as  this  procedure  may  be  to  us,  on  account  of  the  state 
of  things  it  reveals,  still  no  one  believes  that  the  assembled 
prelates  meant  to  make  the  soul  immortal ;  all  they  could 
mean  was  to  declare  the  belief  of  the  church.^     The  French 


'  This  the  state  would  undoubtedly  do,  if  we  adopt  the  view  of  some  earlier 
writers,  <f.^.  Rutherforth's,  according  to  whom  (book  ii.  ch.  l)  right  is  nothing 
but  lawfulness,  that  which  the  law  permits.  If  so,  a  man  can  have  no  right 
except  what  the  law  sanctions;  and  yet  by  far  the  fewest  nations  have  positively 
enacted  the  principle  that  a  man  can  do  everything  that  is  not  prohibited,  although 
nearly  all  acknowledge  the  principle.  Where,  then,  does  this  right  corae  from? 
Where  does  this  right  of  the  lawmaker  himself  come  from? 

"  Raynald,  §  i. 

II 


1 62  THE  STATE. 

Convention  went,  and  was  perhaps  obliged  to  go,  still  farther. 
They  decreed  their  belief  in  a  supreme  being. 

XXXIV.  We  have  arrived,  then,  at  the  following  important 
truths  : 

1.  The  state  exists  of  necessity,  and  is  the  natural  state  of 
man. 

2.  The  state  is  a  jural  society. 

3.  The  state  is  a  society  of  moral  beings. 

4.  The  state  does  not  absorb  individuality,  but  exists  for  the 
better  obtaining  of  the  true  ends  of  each  individual,  and  of 
society  collectively. 

5.  The  state,  being  a  human  society,  jurally  considered  and 
organized,  is  the  society  of  societies ;  a  bond  for  weal  and 
woe. 

6.  The  state  does  not  make  right,  but  is  founded  upon  it. 

7.  The  state  is  aboriginal  with  man;  it  is  no  voluntary  as- 
sociation; no  contrivance  of  art,  or  invention  of  suffering;  no 
company  of  shareholders;  no  machine,  no  work  of  contract 
by  individuals  who  lived  previously  out  of  it ;  no  necessary 
evil,  no  ill  of  humanity  which  will  be  cured  in  time  and  by 
civilization  ;  no  accidental  thing,  no  institution  above  and 
separate  from  society;  no  instrument  for  one  or  a  few;  no 
effect  of  coercion,  or  force  of  the  powerful  over  the  weak ;  no 
mystery  founded  on  something  beyond  comprehension,  or  on 
an  extra-human  base ;  the  state  is  a  form  and  faculty  of  man- 
kind to  lead  the  species  towards  greater  perfection  —  it  is  the 
glory  of  man.^ 

XXXV.  When  it  is  asserted  that  the  state  exists  of  neces- 
sity, and  is  the  natural  state  of  man,  it  is  not  pretended  that 
the  idea  of  the  state,  such  as  I  have  represented  it,  has  existed 


»  Dahlmann,  Politics,  reduced  to  the  basis  and  standard  of  Given  Circum- 
stances, vol.  i.,  Gottingen,  1835,  in  German.  Mr.  Dahlmann  is  one  of  the  Got- 
tingen  professors  who  honorably  protested  against  the  abolition  of  the  Hanoverian 
constitution  by  King  Ernest  (duke  of  Cumberland),  and,  in  consequence,  lost 
their  respective  chairs. 


CIVILIZATION  INCREASES  POWER.  163 

and  been  clearly  acknowledged  from  the  beginning.  The 
history  of  the  state  is  similar  to  that  of  all  other  ties  and 
institutions  founded  in  man's  nature,  and  of  which  I  have 
said  already  that  their  character  becomes  more  distinctly  de- 
veloped on  their  own  essential  ground,  and  that  their  operation 
consequently  becomes  more  powerful  with  every  advanced 
stage  of  civilization,  which  in  other  words  only  means,  with 
every  farther  development  of  man's  true  nature.  No  states 
are  so  powerful  in  their  action,  within  and  without,  as  those 
of  civilized  nations.  It  is  the  same  with  property,  marriage, 
the  family,  division  of  labor,  exchange,  intellectual  intercourse, 
protection  of  person,  public  opinion.  Nothing  is  more  natu- 
ral to  man  than  some  sort  of  administration  of  justice;  it 
begins  with  the  father  in  the  family,  and  man  cannot  possibly 
live  without  it.  Yet  every  progress  in  civilization  secures  it 
more  and  more,  notwithstanding  the  diminution  of  accom- 
panying physical  force  to  the  contrary.  How  weak  and 
fragile  are  the  theoretically  absolute  governments  of  the  East! 
and  where  is  the  state  more  powerful  than  in  England  ? 
Where  has  it  greater  resources,  where  does  every  individual 
feel  himself  more  identified  with  it,  or  rush  more  readily  to 
its  assistance  when  in  danger  ?  A  single  battle  may  put  an  end 
to  a  whole  vast  absolute  empire  ;  but  a  civilized  empire,  with 
a  government  founded  on  civil  liberty,  may  lose  ten  battles, 
and  still  it  exists.  I  do  not,  of  course,  mean  by  state  the  gov- 
ernment, and  by  government  the  executive — a  very  common 
confusion  of  ideas.  I  do  not  mean  that  with  every  progress 
of  civilization  the  numerical  strength  of  the  standing  army  is 
increased,  though  this  too  has  often  been  believed  to  constitute 
the  strength  and  sinew  of  states ; '  or  that  the  executive  becomes 
more  absolute  ;  I  mean  something  far  higher.  I  mean  that  the 
essential  attributes  of  the  state  become  more  distinctly  under- 
stood, affect  more  powerfully  each  individual,  unite  men  into 
a  more  closely  interlinked  community,  that  it  extends  protec- 


»  Even  Algeinon  Sidney  could  say,  "tliat  is  the  best  government  which  pro- 
vides best  for  war."     Discourses,  chap,  ii,  sect.  23. 


1 64  THE  STATE. 

tion  and  receives  stronger  support,  that  vast,  powerful  public 
opinion  joins  it — in  short,  that  the  intensity  of  its  action  in  a 
thousand  different  ways  increases.  Mr.  Elphinstone,  in  the 
quoted  work,  page  338,  says,  "  None  of  all  these  (Afghan- 
istan) chiefs  have  authority  equal  to  that  of  a  constable  in 
England."  Yet  theoretically  their  power  is,  in  the  main,  in 
conformity  to  Asiatic  notions  of  the  authority  of  rulers. 

This  progress  is  but  slow ;  sometimes  even  fearfully  retro- 
grade movements  take  place.  Ideas  which  we  now  cannot 
help  connecting  with  the  state,  attributes  which  appear  to  us 
extremely  simple,  were  not  always  clearly  before  the  mind 
of  the  people.  Thus,  much  time  was  requisite  to  distinguish 
between  bare  temporary  expediency  and  true  right  and  mo- 
rality. We  are  informed  that  with  the  ancient  Egyptians  those 
who  intended  to  follow  the  profession  of  theft  gave  their 
names  to  the  chief  of  the  robbers.  By  this  custom  a  person 
who  had  been  robbed  could  always  obtain  his  stolen  goods 
after  paying  a  quarter  of  their  value,  which  was  considered 
much  better  than  to  expect  protection  from  the  laws  alone 
and  lose  the  whole.  Thieves  who  did  not  belong  to  the  cor- 
poration were  not  suffered  by  the  other  incorporated  rogues  ; 
and  the  chief  of  the  robbers  was  probably  paid  by  govern- 
ment, and  was  "a  man  of  integrity  and  honor." ^  Whatever 
advantage  we  might  expect  from  an  arrangement  of  this  sort 
or  a  similar  compromise  with  crime  itself,  we  could  not,  would 
not  dare  resort  to  it.  The  injury  to  moral  feeling  and  to  the 
very  conception  of  the  state  in  the  citizens  would  be  infinitely 
greater  than  the  advantage  of  recovering  stolen  property.  If 
we  suppose  that  theft  thus  regulated  would  operate  with  us  as 
it  is  represented  to  have  done  with  the  Egyptians,  property, 
indeed,  would  thereby  be  better  protected,  but  the  general 
protection,  the  security  in  obtaining  the  highest  ends  of  so- 
ciety, would  be  incalculably  injured. 


'  Manners  and  Customs  of  the  Ancient  Egyptians,  including  their  Private  Life, 
Government,  Laws,  Arts,  Manufactures,  Religion,  and  Early  History,  etc.,  by 
J.  G.  Wilkinson,  3  vols.  8vo,  London,  1838. 


THE  STATE,   THE  STATE   OF  NATURE.  165 

XXXVI.  If  man,  as  was  shown,  arrived  very  early  at  the 
idea  of  property  and  could  not  live  without  it,  he  must  equally 
soon  have  been  led  to  the  idea  of  the  just.  If  every  relation 
between  the  father  and  his  child  might  be  imagined  as  solely 
resting  on  authority,  power,  or  affection,  we  cannot,  at  least, 
imagine  two  children  of  the  same  parents  to  exist  long  with- 
out giving  necessary  rise  to  the  ideas  of  equality,  of  justice. 
Let  one  brother  sit  down  upon  a  log,  and  the  other  claim  the 
seat ;  the  ideas,  Why  ?  it  is  not  right ;  have  I  not  as  good  a 
right  as  thou  hast?  must  have  struck  the  mind  of  the  first. 
Yet  the  paternal  authority  in  dealing  out  justice  was  still  too 
much  aided  by  the  whole  parental  relation  to  allow  man 
strictly  to  separate  them.  The  father,  the  chief,  the  ruler,  the 
priest,  were  united  in  one  person;  the  various  attributes  had 
not  yet  developed  themselves  as  distinct  from  one  another. 
This  state  of  things  continued  even  for  some  time  after  fami- 
lies had  already  increased  into  tribes.  The  patriarch  ruled 
over  the  whole.  A  state  existed,  indeed  ;  for  there  was  justice 
administered,  and  where  justice  is  administered  there  are 
rights  acknowledged,  and  where  rights  are  acknowledged 
there  is  the  state ;  but  it  was  the  state  in  its  incipient  stage. 
Gradually  the  characteristics  of  the  family  and  the  state,  of 
that  which  is  fair  and  that  which  is  just,  showed  themselves 
with  greater  clearness ; '  though  the  development  of  the  state 
was  and  continues  to  be  affected  by  a  variety  of  adventitious  cir- 
cumstances, like  everything  else  connected  with  mankind.  The 
tree  in  blossom  or  with  the  ripe  fruits  is  in  no  less  natural  a 
state  than  in  winter  when  deprived  of  all  foliage,  nor  is  the 
plant  in  an  unnatural  state  when  yet  unfolded  in  the  germ. 
Nowhere  do  we  see  man  without  the  state  in  some  stage  of  its 
development,  and  Aristotle  is  right  in  saying,  man  is  by  nature 
a  political  animal  {(fbazi  -koXituw  Zwov  a'Apiorrtx;).  If  part  of  the 
ties  of  the  state  are  broken,  the  fragments  will  immediately 

'  The  Aieopagites  had  to  declare  guilt  or  innocence,  or  the  amount  of  punish- 
ment with  reference  to  the  whole  life  of  the  accused.  (yEsch.  c.  Tim.,  113.) 
The  English  or  American  juryman,  according  to  his  oath,  must  decide  upon  the 
evidence  as  it  shall  be  given,  and  according  to  nothing  else. 


l66  THE  STATE. 

unite  again  ;  and  if  men  are  thrown  outside  of  the  pale  of  a  large 
society,  they  themselves  must  instantly  again  unite  to  obey 
some  general  rule,  to  have  it  insisted  upon  by  some  authority, 
to  begin  the  state  anew.  The  "  regulators"  in  the  farthest 
West,  men  who,  for  some  reason  or  other,  enjoy  a  degree  of 
consideration,  and  take  the  law  into  their  own  hand,  while  the 
others  tacitly  or  otherwise  agree  to  it,  form  a  remarkable  in- 
stance of  this  inherent  political  nature  of  man.^  Men  cannot 
possibly  exist  without  law.  The  mutinous  sailors,  after  having 
dispatched  their  captain,  must  elect  another  and  obey  him ; 
the  pirates  who  break  with  human  society  and  declare  them- 
selves out  of  its  pale  are  bound  to  constitute  forthwith  a  state 
of  their  own,  that  is,  a  society  in  which  there  are  general 
rules,  rules  which  will  be  enforced  if  not  obeyed,  rules  on 
which  the  individual  can  insist  if  transgressed  by  another, 
because  established  for  the  jural  relations  among  them,  in 
order  to  maintain  what  they  consider  right,  to  do  justice — a 
society  in  which  there  are  superiors  and  inferiors,  which  ac- 
knowledges authority.  The  history  of  the  buccaneers  is  in 
point.  When  all  laws  were  defied  in  Germany,  the  Vehme 
Courts  sprang  up.^  When  the  planters  of  the  colony  of  New 
Haven  met  on  the  4th  of  June,  1639,  "for  the  establishment 
of  such  civil  order  as  might  be  most  pleasing  unto  God,"  the 
first  question  propounded  was  not  whether  a  civil  government 
was  necessary  in  the  opinion  of  the  assembled  and  previously 
entirely  disunited  planters,  but  at  once,  according  to  the  spirit 
of  the  age,  "  Whether  the  Scriptures  do  hold  forth  a  perfect 
rule  for  the  direction  and  government  of  all  men  in  all  duties, 
as  well  in  the  government  of  families  and  commonwealths  as 


'  They  are  mentioned  by  Mr.  Audubon  in  his  Biography  of  American  Birds. 
An  article  of  great  interest  with  regard  to  this  subject,  on  Pony  Clubs  among  the 
Indians,  is  to  be  found  in  the  National  Gazette  (Philadelphia)  of  October  21, 
1833,  copied  from  the  New  York  American. 

=  Much  light  has  been  thrown  upon  this  subject  by  some  late  publications  of 
the  documents  of  the  Vehme  processes  in  Germany.  [See  Von  Schulte,  Lehrb. 
d.  Deutsch.  Reichs-  und  Rechtsgesch.,  ed.  3,  1873,  \  116,  and  the  authors  there 
cited;  Sugenheim,  Gesch.  d.  Deutsch.  Volks,  ii.  624-634.] 


THE  STATE,   THE  STATE   OF  NATURE.  167 

in  matters  of  the  church."^  I  do  not  know  of  a  solitary  in- 
stance in  history  when  the  question  was  asked,  Is  some  sort 
of  government  or  other  necessary  or  not?  except  in  some 
melancholy  cases  by  frantic  fanatics,  who  preached  the  advent 
of  the  millennium,  on  the  one  hand,  or  by  the  inquiring  phi- 
losopher on  the  other,  in  order  to  prove  its  connection  with 
all  that  is  human  in  man. 

XXXVII.  The  members  of  the  state  do  not  stand  to  each 
other  in  the  relation  of  members  of  one  family,  nor  as  mere 
individuals  brought  together  for  the  sole  purpose  of  protect- 
ing one  another  against  bodily  harm,  nor  for  any  temporary 
and  selfish  purpose.  The  state  has  far  nobler  objects  to  ob- 
tain, though  these  are  included.  Without  peace,  society  can- 
not live,  and  protection  against  bodily  harm  is  undoubtedly 
one  of  the  first  objects  of  the  state.  We  have  seen  that  man 
is  destined  to  acquire  and  possess  property,  and  that  it  forms 
one  of  the  primary  requisites  of  civilization.  The  state,  there- 
fore, has  vigorously  to  protect  it.  But  there  are  more  impor- 
tant objects  yet  to  be  obtained  in  the  course  of  civilization  ; 
and  protection,  as  has  been  stated,  includes  more  than  the  sole 
warding  off  of  injury  to  my  person  or  property.  Ignorance 
and  barbarity,  for  instance,  are  likewise  to  be  warded  off,  not 
only  for  the  indirect  reason  that,  if  not,  they  will  produce 
insecurity,  but  on  the  positive  ground  that  knowledge  and 
education  are  necessary  for  man's  civilization,  and  must  be 
obtained  by  society  jointly  [e.g.  by  common  school  systems, 
universities),  if  they  cannot  be  obtained  by  individual  energy 
or  voluntary  association.  The  state  has  been  compared  to  an 
insurance  company,  in  which  property  forms  the  share  each 
citizen  holds.  Sad  indeed  would  be  that  state  where  this 
principle  should  be  attempted  to  be  acted  out ; — attempted, 
I  say,  for  it  would  be   absolutely  impossible  ever  to  carry 


"  The  record  of  this  very  peculiar  meeting  is  to  be  found  in  the  Code  of  1650, 
of  Connecticut,  etc.,  Hartford,  1825,  p.  114,  et  seq.  [and  in  the  Records  of  the 
Colony  and  Plantation  of  New  Haven,  edited  by  C.  J.  Hoadly,  State  Librarian 
of  Connecticut  in  1857]. 


1 68  THE  STATE. 

it  through.  It  was  a  view  common  towards  the  end  of  the 
last  century,  and  is  maintained  by  some  to  this  day,  yet  it  is, 
even  as  a  mere  simile,  radically  wrong.  For  how  is  it  that 
the  state  legislates  also  over  those  who  have  no  property,  and 
that  they  have  a  right  to  ask  not  only  protection,  but  all  the 
benefits  guaranteed  by  human  society  organized  into  a  state, 
that  is,  human  society  acknowledging  certain  authorities  as 
the  pronouncers  and  executors  of  the  law  ?  How  is  it  that 
no  one  has  a  right  to  withdraw  from  this  insurance  company 
and  say,  "  I  am  my  own  insurer,"  in  other  words,  "  I  renounce 
your  protection,  I  can  take  better  care  of  myself;  give  up, 
therefore,  all  claims  you  make  on  me ;  do  not  consider  me 
any  longer  amenable  to  your  laws"  ?  According  to  this  hol- 
low theory,  men  possessed  of  such  enormous  property  as  the 
marquis  of  Westminster,  the  duke  of  Buccleugh,  the  Port- 
lands and  Bedfords,  ought  to  have  each  a  hundred  votes  at 
least  in  parliament.  Whence,  above  all,  do  we  derive  the 
power  of  the  state,  which  it  undoubtedly  has,  and  has  always 
exercised,  from  time  to  time  materially  to  interfere  with  prop- 
erty, to  prune  it,  if  the  state  exists  only  to  protect  it  and  has 
no  higher  aims?  The  supposition  that  the  state  exists  by  a 
voluntary  contract  is  open  to  similar  objections,  though  there 
is  some  truth  in  the  latter  theory,  but  none  whatever  in  the 
former.  The  state  is,  in  principle,  no  association,  but  a 
society. 

The  comparison  of  the  state  to  an  insurance  company  is 
one  of  the  innumerable  instances  of  men  grasping  at  similes 
when  they  are  unable  to  find  out  or  to  present  the  principle 
of  the  thing  itself,  forgetting  the  danger  of  building  argu- 
ments on  those  parts  of  the  simile  which  do  not  fit,  as  well  as 
on  the  others,  to  which  they  necessarily  expose  themselves. 
Similes  and  metaphors  are  most  dangerous  in  arguments  on 
religion,  sciences,  and  politics.  They  are  serviceable  by  way 
of  illustration,  to  drive  more  forcibly  the  pointed  wedge  of 
argument  into  a  stubborn  block,  but  always  misleading  if 
we  argue  upon  them.  Theology  and  politics  offer  melan- 
choly  illustrations   of  these  facts.      Millions  have  died  for 


THE  STATE  NO   INSURANCE   COMPANY.  169 

similes.  Years  of  debate  are  spent  because  people  will  not 
approach  the  naked  principle,  or  cannot  get  rid  of  associa- 
tions deeply  wrought  into  the  mind  by  a  simile  which  we 
have  heard  from  early  childhood.  Equally  dangerous,  if  not 
more  so,  is  personification,  and  after  the  abstract  or  collective 
idea  has  been  personified,  the  reasoning  upon  it,  as  if  the  two 
were  one  thing.  I  shall  revert  to  this  subject  when  speaking 
of  the  People.  May  I  merely  add  here  that  the  words  "  it  is 
supposed,"  of  constant  occurrence  in  English  political  law, 
ought  to  be  discarded,  because  they  are  apt  to  lead  to  falla- 
cies? Who  can  forget  all  the  fearful  arguments  of  the  crown 
lawyers  and  judges  under  the  Stuarts,  founded  upon  the  sup- 
positions and  political  fictions  of  the  English  law  ?  Politics 
are  matter  of  reality,  of  right,  and  have  nothing  to  do  with 
suppositions,  Blackstone  is  full  of  them;  "the  king  is  sup- 
posed to  be  ubiquitous  f  after  which  we  find  arguments 
founded  upon  this  assumption.  The  king  may  be  supposed 
so,  but  he  is  not,  nor  can  he  be.  All  these  fictions  and  inven- 
tions of  apparent  principles  for  facts,  which  we  wish  to  justify, 
explain,  or  connect — for  to  this  the  fictions  amount — savor 
strongly  of  the  school  philosophy  at  a  stage  when  it  was  at 
once  boldest  and  least  worthy  of  imitation. 

XXXVIII.  How  a  theory  like  that  of  the  state's  being  a 
large  insurance  company  had  its  origin,  may  easily  be  ex- 
plained. The  most  extravagant  ideas  of  the  origin  as  well  as 
of  the  true  character  of  the  state  had  been  started  ;  the  state, 
the  government,  and  finally  the  individual  at  the  head  of  the 
government,  were  partly,  at  times  entirely,  confounded.  A 
monarch  (Louis  XIV.)  had  declared,  Letat,  ccst  moi  (/  am 
the  state) ;  and  though  he  was  at  the  time  but  a  boy,  yet  he 
pronounced  it  in  the  parliament  of  Paris,  and  of  course  must 
have  been  told  so  to  do  by  his  advisers.  Nearly  everywhere 
on  the  European  continent  did  government  act  on  the  princi- 
ple, whether  avowed  or  not,  that  the  monarch,  with  his  army 
and  civil  officers,  was  the  state ;  nearly  everywhere  was  the 
odious  interference  principle,  according  to  which  government 


j^O  THE  STATE. 

might  interfere  with  all  my  affairs,  however  private,  carried 
to  most  injurious  length,  and  all  the  minor  circles  of  the 
state,  of  the  whole  jural  society,  were  so  entirely  deprived 
of  a  proper  action  of  their  own  that  a  perfect  absorption 
by  the  central  and  only  power  became  the  necessary  conse- 
quence ;  nearly  everywhere  on  the  continent  of  Europe  had 
the  individual  been  so  wholly  merged  in  the  state,  such  as 
its  character  then  was  imagined  to  be,  that  it  was  natural, 
in  the  course  which  the  human  mind  takes,  before  a  truer 
view  could  be  obtained,  that  politics  should  pass  first  through 
the  other  extreme,  by  which  the  state  is  construed  in  a  nega- 
tive way,  if  I  may  express  it  thus,  and  according  to  which,  as 
an  author  has  said,  all  the  state  has  to  do  is  "  to  look  out  that 
my  neighbor  does  not  pick  my  pockets  or  box  my  ears." 
The  foundation  of  the  state  lies  too  deeply  in  the  human  soul, 
in  man's  whole  nature,  to  be  explained  simply  by  selfishness. 
It  is  no  accidental  mass  of  atoms  ;  it  is  an  organism.  Observe 
a  steamboat  full  of  passengers,  all  collected  for  one  purpose, 
to  reach  a  certain  point  as  soon  as  possible,  all  in  the  same 
condition,  having  paid  their  fare,  and  equally  interested  in  the 
safety  of  the  vessel.  Besides  these  points,  every  passenger 
forms  an  isolated  individual.  Is  this  the  picture  of  a  state? 
What  a  society  do  they  form !  with  what  utter  selfishness 
every  one  acts  and  struggles  for  himself!  Is  this  a  society  ? 
an  organized  thing,  with  life  and  energy,  with  moral  elasticity, 
with  power,  which  can  rest  on  close  union  alone  ?  with  an 
elevating,  a  humanizing  character  ?  Are  there  no  other  con- 
siderations than  those  of  the  protection  of  property  and  life, 
which  unite  us  into  a  state  ?  Then  how  unwise  to  sacrifice 
either  for  liberty  !  Then  how  absurdly  did  the  Athenians  act, 
when  the  Persians  offered  to  them  to  live  peaceably  under 
their  government,  but  they  preferred  to  abandon  property, 
city,  all,  and  to  expose  their  lives  on  board  their  vessels  in  the 
battle  at  Salamis  !  Then  let  us  celebrate  the  Thessalians,  the 
Locrians  and  Bceotians,  who  willingly  sent  earth  and  water 
to  the  Persian  monarch  upon  the  call  to  submit,  and  blame 
the  other  Greeks,  who,  according  to  an  account  given  by  later 


THE  STATE  NO   INSURANCE   COMPANY.  171 

authors,  resolved  to  amerce  in  a  tenth  of  their  property  the 
medising  part  of  the  race.  Then  we  ought  to  consider  all 
those  most  thrilling  pages  of  Herodotus  on  the  Persian  wars 
as  but  a  sad  illustration  of  man's  folly;  and  the  cautious  and 
well-weighing  Heeren  is  but  to  be  pitied  if  he  says,  with  refer- 
ence to  that  struggle,  that  whatever  mean  acts  were  mixed 
with  the  greatest,  "  yet  in  the  whole  compass  of  history  we 
can  find  no  series  of  events  which  deserves  to  be  compared 
with  the  grand  episode  then  exhibited ;  and  with  all  the  ex- 
aggerations of  the  orators  and  poets,  the  feeling  of  pride  with 
which  the  Greeks  reflected  on  their  achievements  was  just  and 
well  founded.  A  small  country  had  withstood  the  attack  of 
half  a  continent;  it  had  not  only  saved  the  most  valuable 
possessions  which  were  at  stake — its  liberty,  its  independence 
— but  it  felt  strong  enough  to  continue  the  contest,  and  did 
not  lay  down  its  arms  till  it  was  able  to  prescribe  the  condi- 
tions of  peace."  (Political  History  of  Ancient  Greece,  transl., 
p.  126.) 


CHAPTER     V. 

Legitimate  Objects  of  the  State. — Danger  of  intermeddling  Legislation;  Instances. 
— Primordial  Rights  and  Claims. — Physical  Life  and  Health. — Law  of  Neces- 
sity.— Personal  Liberty. — Right  of  Individuality;  no  Absolute  Obedience 
possible. — Right  of  Share  in  the  Protection  of  the  State. — Jural  Reciprocity. — 
Right  to  be  judged  by  Laws,  and  Laws  only. — Right  of  Communion  or  Utter- 
ance.— Liberty  of  the  Press. — Right  of  Morality. — Immoral  Laws,  no  Laws. 
— Right  of  Honor,  Reputation. — Family. — Religion,  Creed,  Worship. — Right 
of  Property,  Acquisition,  Exchange. —  Right  of  Emigration.  —  Inalienable 
Rights. — State  cannot  take  Revenge;  the  Crown  cannot  feel  Wrath. — Polit- 
ical Absurdity  of  speaking  of  King's  Anger  or  Nation's  Revenge  as  Political 
Body. 

XXXIX.  The  truth  with  regard  to  what  the  state  is,  lies 
between  two  extremes.  The  one  has  been  mentioned  in  the 
previous  section  ;  the  other  is  expressed  by  Aristotle,  namely, 
that  the  state  exists  before  the  individual ;  if  we  understand 
it  in  the  way  the  ancients  actually  viewed  the  state.  The 
state,  according  to  them,  was  all  and  everything,  the  indi- 
vidual receiving  his  value  from  the  state  alone.  The  essen- 
tial difference  between  what  the  ancients  understood  the  state 
to  be  and  what  they  considered  the  essence  of  liberty  on 
the  one  hand,  and  the  modern  views  on  the  other,  will  be 
more  fully  treated  hereafter.  Aristotle  was  right,  if  he  meant 
to  say  that  man  cannot  exist  without  the  state,  that  the  state 
is  not  an  optional  thing,  or  an  artificial  contrivance,  but  that  it 
exists  by  necessity  as  an  effect  and  consequence  of  our  nature, 
as  language  is  not  conventionally  made,  but  exists  between 
men  as  a  necessary  consequence  of  their  physical  and  intellec- 
tual nature,  that  the  necessity  of  the  state  lies  in  every  indi- 
vidual, and  that  every  one,  therefore,  finds  already  a  state,  in 
whatever  stage  of  development  it  may  be.  The  right  of 
society  to  legislate — that  is,  the  right  existing  somewhere  of 
prescribing  general  and  imperative  rules — has,  I  believe,  never 
been  doubted,  any  more  than  the  right  of  breathing  in  the  in- 
172 


OBJECT  OF  THE  STATE.  1 73 

dividual ;  both  flow  from  the  same  source — necessity  accord- 
ing to  our  nature.  They  are  conditions  of  our  existence  as 
human  beings.  We  might  live  as  brutes  without  the  institution 
of  the  state,  but  for  our  existence  as  human  beings  the  state 
is  a  conditio  sine  qua  non  ;  and  this  absolute  necessity  consti- 
tutes the  ground  on  which  is  founded  what  is  called  sover- 
eignty, that  is,  the  self-sufficient  power,  which  derives  its 
vital  energy  from  no  other,  is  founded  by  no  superior  au- 
thority, but  imparts  it  and  extends  over  everything  that  is 
requisite  in  order  to  obtain  the  object  of  the  state;  which  man 
has  to  obtain  in  and  by  society,  in  as  far  as  it  is  founded  on 
jural  relations,  i.e.  on  right,  on  terms  of  justice,  or  mutual 
.  obligations.  Yet  be  it  mentioned  thus  early,  sovereignty 
means  something  entirely  different  from  absolute  power, 
unbounded  power. 

XL.  The  state  (or  human  society  organized  on  and  accord- 
ing to  its  jural  relations)  has  for  its  legitimate  objects  all  those 
things  that  are  necessary  or  highly  important  for  man,  and 
which  yet  he — first,  cannot  obtain  singly;  secondly,  ought 
not  to  obtain  singly  (because  he  exposes  himself  or  his 
fellow-citizens  by  doing  so  to  great  danger,  for  instance,  by 
redressing  privately  interferences  with  his  rights);  thirdly, 
will  not  do  singly,  because  burdensome,  disagreeable,  etc.,  e.g. 
to  keep  roads  in  good  order,  or  establish  common  schools). 
Thus,  life  is  absolutely  necessary  for  man,  and  if  he  cannot 
possibly  obtain  medical  assistance,  society  is  bound  to  fur- 
nish it.  Public  hospitals  are  not  a  mere  matter  of  charity, 
they  are  a  matter  of  right.  That  they  may  be  abused,  and 
easily  abused,  we  know;  we  know,  too,  that  their  abuse  in- 
terferes with  some  sacred  interests  of  society,  for  instance, 
lively  family  interest.  If  the  Greeks  thought  that  the  devel- 
opment of  taste  was  essential  to  the  whole  development  of 
man,  and  that  individual  means  were  insufficient  to  effect  the 
necessary  cultivation  of  the  fine  arts,  the  state  was  right  in 
promoting  them  by  public  means.  If  the  British  people  be- 
lieve that  the  love  of  the  fine  arts  has  the  twofold  salutary 


174 


THE  STATE. 


effect  of  softening  the  manners,  of  humanizing  and  aiding  in 
bringing  out  what  is  human  within  us,  and  of  elevating  taste 
and  thereby  raising  the  standard  of  comfort,  which  again 
is  of  essential  importance  to  national  industry,  then  parlia- 
ment has  a  right  to  spend  money  for  the  improvement  of  the 
British  Museum,  and  acts  wisely  in  so  doing,  and  the  most 
scrupulous  citizen  must  rejoice  at  the  constantly  increasing 
number  of  visitors  of  that  interesting  institution.  That  a 
museum  ought  not  to  be  promoted  at  the  expense  of  things 
more  urgently  important,  is  a  matter  of  course.  Political 
wisdom  and  honesty  must  decide  in  practice ;  and  practice  in 
political  matters  is  attended  with  the  same  difficulties  as  in 
any  other  sphere,  because  in  practice  various  interests  clash, 
and  we  must  choose  between  them.  If  society  be  convinced 
that  institutions  of  deep  learning,  universities,  are  of  absorb- 
ing importance  to  society,  because  science  must  always  be 
far  in  advance  of  practice,  and  because  the  cultivation  of  the 
sciences  for  their  own  sake,  and  not  with  a  confined  view  of 
immediate  practical  application,  raises  the  standard  of  knowl- 
edge in  general,  and  is  a  great  blessing  to  a  community, 
and  if  the  state  be  convinced  that  private  means  must  ever  be 
insufficient  for  the  erection  of  a  university  and  the  collection 
of  large  libraries,  museums,  etc.,  or  if  experience  have  shown 
that  private  exertion  will  not  be  directed  to  the  foundation  of 
a  university,  then  the  state  has  precisely  the  same  right  and 
the  same  obligation  to  found  a  university  as  it  has  to  aid  in 
the  foundation  of  common  schools,  or  hospitals,  courts,  pilots, 
or  armies. 

Everything  in  the  state  must  be  founded  on  justice,  and 
justice  rests  on  generality  and  equality.  The  state,  therefore, 
has  no  right  to  promote  the  private  interests  of  one  and  not 
of  the  other.  It  promotes  my  interests  if  it  assists  me  in 
getting  my  debts  paid,  but  it  must  do  the  same  for  all  others. 
It  promotes  private  interest  if  it  gives  a  pension  to  the  widow 
of  a  soldier,  but  it  is  done  on  the  ground  that  society  owes 
her  a  debt,  or  that  it  is  good  for  society  thus  to  encourage 
soldiers.     If  the  state  gives  money  to  a  traveller  into  distant 


OBJECT  OF  THE  STATE.  175 

regions,  or  to  study  the  arts  in  Rome,  it  does  this  because  the 
public  is  believed  to  benefit  by  it,  directly  or  indirectly,  but 
the  money  is  not  given  to  the  private  individual  as  such. 
Though  public  gifts  of  this  nature,  pensions  and  the  like,  have 
frequently  been  bestowed  in  a  shameless  manner  upon  Somer- 
sets and  Buckinghams,  it  was  generally  at  least  pretended 
that  it  was  done  for  some  public  good,  to  reward  loyalty, 
surround  the  throne  with  splendor,  etc.  The  riches  publicly 
lavished  by  a  Louis  XV.  or  Charles  II.  upon  dishonorable 
characters  make  an  exception  ;  so  does  their  age.  I  do  not 
know  that  what  is  lawful  for  the  state  to  do,  and  how  it  ought 
to  be  done,  has  ever  been  more  lucidly  expressed  than  in  the 
following  passage  of  Isidorus  of  Seville  (Orig.,  lib.  v.  c.  22), 
in  v/hich  the  pleonasms  are  more  apparent  than  real :  "  Erit 
lex  honesta,  justa,  possibilis,  secundum  naturam,  secundum 
consuetudinem  patriae,  loco  temporique  conveniens,  necessaria, 
utilis,  manifesta  quoque,  ne  aliquid  per  obscuritatem  in  cap- 
tione  contineat,  nullo  private  commodo  sed  pro  communi 
utilitate  civium  scripta." 

XLI.  It  is  evident  that,  according  to  the  principles  laid 
down,  there  is  no  theoretical  difficulty  respecting  the  subjects 
which  require  the  action  of  the  state  or  not,  and  those  which 
the  state  ought  never  to  touch.  But  in  practice  there  is  much 
difficulty,  because  it  is  not  easy  to  decide  what  is  of  sufficient 
general  interest  to  allow  of,  and  what  of  sufficient  general 
importance  to  call  for,  public  action.  The  choice  of  the  sub- 
jects with  which  the  state  ought  to  interfere  must  essentially 
depend  upon  the  state  of  civilization  of  the  society,  and  the 
difference,  as  to  knowledge,  between  the  authorities  of  the 
state  and  the  ruled.  The  general  principle  undoubtedly  is, 
interfere  as  little  as  possible  with  the  private  affairs  of  the 
individual.  This  is  clear  from  the  object  of  the  state.  The 
intermeddling  of  the  state  with  private  affairs  is  unjust,  bur- 
densome, and  dangerous,  requires  enormous  sums,  and  fre- 
quently springs  from  other  motives  than  a  wish  to  be  useful 
to  those  whose  affairs  are  intermeddled  with.     If  society  have 


i;6  THE  STATE. 

a  fair  start  in  civilization,  no  principle  can  be  sounder  than  to 
leave  as  much  to  private  exertion  as  the  public  weal,  comfort, 
and  morality  allow.  Individual  industry,  private  combination, 
and  associations,  which  are  conscious  that  they  depend  upon 
themselves  alone,  are  possessed  of  a  vigor,  keenness,  and 
detailed  industry  that  cannot  be  expected  of  the  action  of  the 
state  if  applied  to  industry  or  other  exertions  partly  connected 
with  industry.  The  American  packets  to  Liverpool  and  Havre 
ply  more  swiftly  than,  or  at  least  as  swiftly  as,  any  govern- 
ment packet;  but  it  must  not  be  forgotten  that  this  requires 
a  general  free  action.  Nothing  is  more  common  than  that 
single  branches  are  badly  conducted  by  the  people  in  coun- 
tries in  which  government  has  in  general  annihilated  the 
independent  exertion  and  native  individual  vigor,  A  similar 
principle  applies  to  the  affairs  of  government  matters  them- 
selves, as  will  be  seen  in  the  sequel.  On  the  other  hand,  the 
state,  that  is,  its  public  authorities  have  frequently  means  of 
obtaining  correcter,  wider  views,  ampler  and  more  detailed 
knowledge,  in  short,  official  information  unattainable  by  the 
individual,  and  can  command  the  aid  of  better  qualified  per- 
sons, so  that  interfering  becomes  just,  because  demanded  by 
public  interest.  Experience  alone  shows  in  practice  which  is 
the  true  limit  and  mean,  provided  only  that  the  first  principles 
of  the  state,  of  right,  are  always  kept  in  view.  The  task  of  a 
Peter  the  Great  of  Russia,  to  unite  and  raise  a  barbarous 
nation,  is  very  different  from  the  problem  to  be  solved  in  a 
country  like  England.  Nothing  can  be  more  preposterous 
than  a  police  interference  with  the  cooking  of  the  people;  yet 
in  times  of  a  devastating  plague  no  community  would  hesitate 
to  interfere  with  the  choice  of  food,  if  such  a  measure  were 
considered  essential  to  public  health.  In  general,  it  may  be 
said  that  views  respecting  this  subject  are  fast  becoming  more 
correct.  During  the  latter  part  of  the  last  century  and  the 
beginning  of  the  present,  the  more  active  governments  on  the 
continent  of  Europe  carried  the  intermeddling  principle  to 
such  an  extent  that  no  affair,  however  private,  seemed  to  be 
considered  as  not  belonging  to  police  inspection.    It  has  been 


PRIMORDIAL  RIGHTS. 


177 


found,  however,  even  where  the  people  did  not  insist  upon  the 
contrary,  that  this  course  leads  to  most  calamitous  and  useless 
results.  Yet  this  mistaken  notion  of  the  duties  or  rights  of 
the  state  is  met  with  also  in  earlier  periods  than  the  one  men- 
tioned.' It  is  necessary  to  have  seen  nations  who  have  been 
forced  for  centuries  to  submit  to  constant  and  minute  police 
interference,  in  order  to  have  any  conception  of  the  degree  to 
which  manly  action,  self-dependence,  resoluteness,  and  invent- 
iveness of  proper  means  can  be  eradicated  from  a  whole  com- 
munity. On  this  account,  systematic  interference  weakens 
governments,  instead  of  strengthening  them ;  for  in  times  of 
danger,  when  popular  energy  is  necessary,  when  "  every  man 
must  do  his  duty,"  or  the  state  is  lost,  men,  having  forgotten 
how  to  act,  look  listlessly  to  the  government,  not  to  them- 
selves. The  victories  of  Napoleon  over  the  many  states  east 
and  south  of  France  were  in  a  great  measure  owing  to  this 
natural  course  of  things. 

XLII.  From  the  elementary  truths  which  have  been  found, 
we  shall  be  enabled  to  draw  conclusions  of  momentous  im- 
portance both  with  regard  to  the  individual  members  of  the 
state,  and  to  the  state  collectively.  These  truths  have  been 
more  distinctly  developed  in  the  course  of  civilization ;  the 
more  essential  their  importance,  the  more  steadily  and  dis- 
tinctly have  they  gradually  unfolded  themselves,  and  are  con- 
sequently to  be  regarded  as  natural  to  man  and  the  state. 
The  following  remarks  will  contain  some  amplifications  of 
what  has  been  stated  in  sect,  xxxiv.  and  previous  sections. 

The  writers  on  natural  law  speak  of  several  original  rights; 
that  is,  rights  which  I  possess  as  a  human  being,  quatenus 
homo  sum,  and  which  are  contradistinguished  to  acquired  rights. 
The  former  are  likewise  called  personal  rights,  because  in- 


'  Christian  II.  of  Denmark,  who  lived  in  the  beginning  of  the  sixteenth  cen- 
tury, prescribed,  by  heavy  penalty,  not  only  how  the  street  and  entry  of  houses 
ought  to  be  swept,  but  when  and  how  benches  and  tables  in  the  houses  were  to 
be  scoured.  Raumer's  History  of  Europe  since  the  Fifteenth  Century,  vol.  ii. 
p.  114,  where  tlie  proper  authorities  are  given. 

2 


i;8 


THE  STATE. 


herent  in  every  individual,  i.e.  human  individual.  Properly, 
there  is  but  one  original  or  primordial  right,  that  of  my  per- 
sonality, the  right  I  have  expressed  already  by  way  of  axiom: 
"  I  am  a  man,  therefore  I  have  a  right  to  be  a  man."  By  my 
existence  I  prove  my  imprescriptible  right  to  my  existence  as 
man,  physical,  intellectual,  moral — my  right  that  humanity  in 
me  be  not  annihilated,  and,  inasmuch  as  freedom  of  action 
constitutes  one  of  the  chief  ingredients  of  humanity,  that  I 
be  allowed  to  do  all  that  does  not  interfere  with  the  same 
right  in  others. 

The  truths  we  have  so  far  ascertained  are : 

Men  are  individuals,  and  must  forever  remain  such. 

Men  are  moral  beings,  each  one  for  himself. 

Men  must  live  in  society. 

Men,  as  free  agents,  become,  in  contact  with  others,  jural 
beings  (beings  who  have  rights  towards  others,  and  towards 
whom  others  have  rights,  that  is,  who  have  obligations). 

The  state  is  a  jural  society. 

From  these  positions  we  derive  the  following  conclusions  : 

I.  The  physical  life  of  the  individual  is  the  first  of  all  con- 
ditions of  my  existence  as  man.  The  state,  therefore,  cannot 
take  it  for  the  benefit  of  others,  because  it  would  violate  the 
first  of  my  rights, — that  of  living, — without  being  able  to 
give  me  an  equivalent,  unless  the  state  have  acquired  a  right 
over  my  life  on  the  specific  ground  of  my  having  forfeited  it.' 


*  The  question  of  capital  punishment  cannot  be  developed  here  ;  it  may  suffice 
to  say  that,  according  to  the  true  principles  of  the  punitory  power  in  the  state — • 
see  Lieber's  Letter  to  the  President  of  the  Philadelphia  Prison  Society  on  Sub- 
jects of  Penal  Law,  Phila.,  1838— no  doubt  can  be  entertained  as  to  the  abstract 


PRIMORDIAL  RIGHTS.  1 70 

The  Spartans  murdered  at  times  the  helots.  "  They  kill  of 
the  helots  as  many  as  is  necessary."'  The  extrajudicial  kill- 
ing of  a  person  may  become  absolutely  necessary  in  a  specific 
case  of  self-preservation,  as,  for  instance,  it  seems  to  have  been 
necessary  on  board  the  wrecked  French  vessel  Medusa,  which 
I  shall  have  to  mention  hereafter;  but  when  a  state  institution 
regularly  requires  this,  it  shows  thereby  alone  that  it  ceases 
to  be  the  state,  the  protecting  society,  and,  of  course,  that  all 
mutual  obligations  are  at  an  end.  The  majority  have  not  the 
right  to  kill  the  minority,  as  happened  in  the  case  of  the 
"  Corcyrean  Sedition,"  related  by  Thucydides,  for  to  this 
amounts  in  my  opinion  that  massacre  —  a  prototype  to  the 
massacre  of  St.  Bartholomew.  Richelieu,  who  will  be  allowed 
to  have  possessed  high  notions  of  the  king's  power,  said, 
"The  king  is  not  master  of  life  and  death,  and  cannot  com- 
mand duels  to  be  fought."  (Richelieu,  Memoires,  iii.  41 ;  Po- 
litical Testament,  i.  190.) 

Closely  connected  with  this  right  is  the  claim  of  protection 
for  my  body,  limbs,  and  health.  Many  considerations  of  high 
importance  must  give  way  if  clashing  with  the  sanitary  in- 
terests of  the  members  of  the  community.  Every  other  right 
is  to  give  way  if  life  and  health  are  in  question,  and  so  high 
has  it  been  considered  by  the  civil  law,  that  to  save  my  life, 
if  under  absolute  necessity,  every  right  of  others  may  be  dis- 
regarded [jus  necessitatis ;  necessitas  non  ha  bet  legem).     If  a 


right  in  the  state  to  punish  capitally  for  certain  crimes.  The  question  only  can 
turn  upon  these  points :  is  it  requisite  or  expedient,  will  its  continuance  in  the 
penal  code  aid  in  punishing  criaie  or  protect  against  it,  and  can  man  establish  a 
mode  of  ascertaining  the  truth,  i.e.  of  trial,  on  which  he  may  so  far  depend  as  to 
take  away,  upon  its  result,  the  life  of  another  and  to  cut  off,  on  the  discovery  of 
a  wrong  verdict,  not  only  the  possibility  of  restoring  him  to  his  former  condition, 
but  that  also  of  acknowledging  to  him  his  error  and  arresting  his  punishment? 
This  then  would  lead  to  an  inquiry  into  the  various  modes  of  penal  trials  and 
their  actual  operation.  It  belongs  likewise  to  the  question  of  expediency  whether 
the  punishment  substituted  for  death  can,  according  to  existing  circumstances, 
ever  more  powerful  than  professions  and  wishes,  be  faithfully  maintained. 

'  Heraclides  Pont.,  Fragm.,  ed.  C.  Miiller,  Frag.  Hist.  Gr.,  ii.  p.  310.    Compare 
Plutarch,  Lycurgus,  c.  28,  and  also  Thucyd.,  iv.  80. 


l8o  THE  STATE. 

man  be  in  actual  and  palpable  danger  of  starvation,  he  may 
make  use  of  the  property  of  any  one  else.  Necessity,  as  it  is 
expressed,  does  not  establish  a  right,  but  annihilates  account- 
ability. (See  C.  A.  Tittmann,  Manual  of  the  Science  of  Penal 
Law,  in  German,  vol.  i.  §  89.)  The  English  common  law 
does  not  acknowledge  absolute  necessity  as  a  ground  of  non- 
accountability,  except  in  cases  of  self-defence,  though  the 
rectifying  principle  in  the  institution  of  the  jury  would  not 
allow  a  man  to  be  punished  for  having  eaten  what  did  not 
belong  to  him,  in  a  case  of  starvation. 

XLIII.  2.  My  personal  liberty  is  a  condition  of  my  free 
agency  as  a  member  of  society — is  an  ingredient  of  my  hu- 
manity. The  prisoner  may  be  free  in  mind,  freer  than  any 
one  not  in  chains.  Who  was  the  freer  of  the  two,  the  old,  mild 
Barneveldt  in  prison,  sentenced  to  death,  and  yet  incapable  of 
saying  one  word  by  way  of  petitioning  for  pardon,  because 
he  would  not  become  a  hypocrite  and  outwardly  acknowledge 
guilt,  even  in  the  slightest  degree,  or  Maurice  of  Nassau,  who 
insisted  upon  it,  and  had  him  executed?  Yet,  as  a  being 
who  has  to  obtain  certain  objects  in  this  world  and  in  society 
with  others,  I  must  be  personally  free.  The  state  cannot  cir- 
cumscribe my  personal  liberty  in  any  way,  unless  I  have 
forfeited  it.'  The  state  exists  to  protect  it,  not  to  interfere 
with  it. 

XLIV.  3.  The  fact  that  man  cannot  by  possibility  divest 
himself  of  his  individuality  and  moral  character  shows  that 
the  state  cannot  absorb  the  individual,  since  the  state  remains 
forever  a  society,  that  is,  a  union  of  individuals :  hence — 

a.  Absolute  obedience  of  any  one  to  any  other  person  is 
impossible;  for  it  would  absorb  individuality  and  annihilate 
the  moral  character,  that  is,  individual  moral  value  (requiring 


*  Respecting  imprisonment,  and  how  the  state  is  bound  to  protect  even  the 
convict,  see  the  above-quoted  Letter  to  the  President  of  the  Philadelphia  Prison 
Society. 


PRIMORDIAL  RIGHTS. 


I8l 


free  agency)  and  responsibility.     More  of  this  under  the  head 
of  Obedience  to  the  Laws. 

b.  Absolute  power,  either  in  society  collectively  or  any 
individual,  is  inadmissible ;  for  absolute  power  presupposes  (is 
only  the  antithesis  to)  absolute  obedience.  Nor  can  an  indi- 
vidual, clothed  with  whatever  authority,  cease  thereby  to  be 
a  moral  individual,  with  all  his  rights  and  responsibilities. 
The  individual  personating  the  crown  cannot  possibly  divest 
himself  of  individuality,  and  consequently  remains  in  a  jural 
relation  to  other  individuals.  If  a  monarch  shoots  his  sub- 
jects for  pleasure — and  these  cases  have  happened — does  he 
do  it  as  monarch,  or  has  the  individual  no  right  to  protect 
himself  and  repel  the  aggressor  or  render  him  offenceless  ? 
This  subject  will  occupy  us  more  under  the  head  of  Sover- 
eignty. Suffice  it  here  to  say,  the  monarch  cannot  cease  to 
be  an  individual  and  as  such  to  stand  in  jural  relations  to 
other  individuals.  Nor  has  ever  any  other  view  been  taken 
in  practice ;  for  whenever  a  monarch  came  to  be  considered  a 
common  invader  of  primordial  right — a  general  nuisance — 
the  people  have  made  him  innoxious. 

XLV.  4.  Since  I  am  an  individual  with  a  moral  character, 
and  stand  therefore  in  jural  relations  to  other  beings  of  the 
same  class,  it  is  clear  that  reciprocity  exists  between  us,  for 
all  right,  in  its  very  meaning,  involves  reciprocity.  It  cannot 
be  right  without  this.  The  state,  founded  on  these  relations, 
has  the  same  character,  or,  in  other  words,  there  are  jural 
relations  between  me  individually  and  the  state  collectively, 
there  is  the  relation  of  reciprocity  between  the  two.  The 
moment  that  any  particular  state  were  actually  to  treat  me  as 
merely  existing  for  it,  demanding  only  and  giving  nothing,  or 
demanding  without  giving  the  equivalent,  that  moment  the 
bond  is  dissolved  and  the  state  does  not  any  longer  exist  for 
me — it  is  not  my  state. 

I  believe  it  is  this  idea  which  forms  the  pith  of  Chief-Justice 
Markham's  remark  to  Edward  IV.,  that  "the  king  cannot 
arrest  a  man  upon  suspicion  of  felony  or  treason,  as  any  of 


1 82  THE  STATE. 

his  subjects  may ;  because  if  he  should  wrong  a  man  by  such 
arrest,  he  can  have  no  remedy  against  him."  ^ 

XLVI.  5.  My  standing  in  jural  relations  to  the  state,  my 
obligations,  rights,  and  penalties,  must  be  expressed  and 
judged  of  by  laws,  for  laws  are  the  organs  of  the  state.  Rights 
imply  that  he  who  has  them  can  insist  upon  them ;  he  ought 
to  have  the  power,  or  some  one  else  for  him,  to  enforce  them. 
Hence  they  cannot  depend  upon  personal  views  and  feelings 
and  affections ;  they  must  be  clearly  defined,  must  not  lie  in 
an  indefinite  state  in  the  breast  of  some  one;  or,  as  in  German 
terminology  it  would  be  properly  expressed,  rights  are  ob- 
jective, not  subjective.  The  connection  of  the  individual  with 
the  state,  then,  his  obligations  and  responsibilities,  are  to  be 
judged  by  laws.  Each  member  of  the  state  has  a  right  to  be 
judged  by  laws.  It  is  not  always  possible  that  laws  be  abso- 
lutely or  mathematically  definite ;  it  cannot  be  (see  Political 
Hermeneutics).  An  officer  is  sentenced  for  "  ungentlemanlike 
behavior,"  and  justly;  but  what  is  gentlemanlike  behavior? 
Still,  he  is  judged  by  laws.  He  who  demands  unlawful 
things,  be  he  who  he  may,  does  it  as  a  private  individual, 
at  his  own  peril,  for  the  state  has  no  other  means  of  speak- 
ing but  through  the  law  or  lawful  authority,  i.e.  authority 
keeping  within  the  law  ;  all  beyond  it  is  private.  "  When  the 
'  commissioners*  used  to  send  pursuivants  to  ransack  houses, 
and  an  individual  defended  his  rights  by  killing  the  officer  who 
attempted  to  enter  his  house  by  virtue  of  a  warrant  from  the 
commissioners,  the  ordinary  judges  declared  that  he  was  not 
liable  to  prosecution,  and  dismissed  him  from  the  bar." 
(Simpson's  Case,  before  the  judges  of  assize  in  Northampton- 
shire, 42d  Eliz.,  4th  Inst,  332.  See,  for  more  authorities,  Bro- 
die,  i.  p.  198.  See  also  Hallam,  Const.  Hist,  of  England,  vol, 
i.  p.  527,  et  seq.)  It  was  no  excuse  for  Strafford,  or  the  minis- 
ters of  Charles  X.  of  France,  for  their  illegal  acts,  that  the  king 
personally  had  ordered  it  thus.     So  far  is  this  true  principle 


Quoted  in  Hallam,  Constitutional  History  of  England,  vol.  i.  p.  526. 


PRIMORDIAL  RIGHTS. 


183 


carried,  that  an  individual,  upon  whom  a  constable  officially- 
called  in  the  street  to  assist  him  in  the  arrest  of  a  person, 
was  held  answerable  when  it  was  found  that  the  constable  had 
no  right  to  make  the  arrest.  It  lately  happened  in  the  city 
of  New  York.  Sacred  as  the  principle  is,  the  application  of 
it  in  this  particular  case  exacts  an  impossibility.  For  a  citi- 
zen cannot,  when  thus  called  upon,  ascertain  whether  the 
constable  is  performing  a  lawful  act.  But  a  law  ought  to  be 
possible  ;  it  is  one  of  its  very  first  requisites. 

XLVII.  6.  Man  cannot   be  man  without  communion   or 
utterance,  be  this  by  sound  or  sign,  and  be  this  sign  transitory 
fas    the  sign    made    by  the    deaf  and    dumb)    or   enduring 
(by  writing).     We  cannot  exist  physically,  intellectually,  and 
morally,  without  utterance;   our  whole  existence  as  human 
beings  depends  upon  it.     We  cannot  imagine  a  human  so- 
ciety consisting  of  beings  deaf,  dumb,  and  blind,  as  the  one 
of  whom  Mr.  Stuart,  the  British  philosopher,  gave  an  account, 
and  as  there  is  now  one  in  the  institution  for  the  blind  at 
Hartford,  Connecticut  (named  Julia  Brace).     Mankind  could 
never  have  advanced,  had  not  the  members  of  the  existing 
generations  held  free  converse  among  themselves,  and  had 
not,  in  the  course  of  time,  one  generation  learned  to  commune 
with  the  next,  or  people  separated  by  space  learned  to  ex- 
change their  ideas.     The  more  the  earth  became  peopled,  the 
more  the  stage  of  action,  knowledge,  and  intercourse  became 
extended,  and  the  more  the  collection  of  facts  and  reasoning 
upon  them  required  communications  too  extensive  for  mere 
oral   converse,  the   more  writing  became  necessary,  and  the 
more  knowledge  of  what  has  been  written  became  indispen- 
sable?    Still,  writing  is  nothing  but  utterance  and  converse, 
although  of  the  utmost  importance  to  mankind,  because  with- 
out it  man  could  never  have  shaken  off  the  thraldom  of  dis- 
torting tradition;  knowledge  could  not  have  accumulated  in 
any  high  degree,  it  could  not  have  descended  by  way  of  inherit- 
ance from  one  to  the  other.     Interfering  with  writing,  there- 
fore, is  interfering  with  thought,  and,  according  to  a  German 


1 84  THE  STATE. 

homely  but  significant  proverb,  "  thoughts  are  duty-free.' 
Utterance  is  nothing  more  than  the  manifestation  of  thought 
or  feehng.  And  is  the  mind  not  absolutely  free  of  the  state  ? 
Where  is  the  jural  relation  in  which  it  stands  to  others,  with- 
out which  the  state  cannot  touch  it?  Plence  the  inadmissi- 
bility of  any  authority  interfering  with  scientific  and  religious 
utterances,  if  no  right  of  others  is  infringed.  The  state  must 
not  interfere  with  thought.  No  authority,  man,  or  body  has 
a  right  to  disturb  my  communion  with  my  fellow-men,  by  what- 
ever means  of  utterance  I  choose.  To  establish  censorship 
amounts  to  nothing  less  than  to  ordain  that  no  man  shall 
leave  his  house,  or  give  to  any  one  to  eat,  or  offer  anything  for 
exchange,  if  he  has  not  previously  obtained  permission  to  do 
so  on  proving  that  he  has  no  criminal  intention.  Censorship 
disturbs  me  most  essentially  in  my  jural  relations  and  the 
first  foundation  of  them,  namely,  that  I  must  be  allowed  to 
do  what  harms  no  one,  and  be  interfered  with  only  when  I 
do  harm.  Locomotion  is  certainly  a  primordial  right,  with- 
out which  mankind  could  not  exist ;  yet  if  I,  for  one,  were 
forced  to  choose  between  locomotion  and  converse,  I  would 
prefer  the  latter,  for  I  might  contrive  to  live  penned  up  in  a 
room  more  easily  than  without  free  communion  with  other 
minds.  The  state  has  no  right  either  to  interfere  with  what  I 
shall  read  (for  instance,  by  establishing  authorities  on  the  fron- 
tiers to  inspect  all  imported  books,  whether  they  are  fit  to  enter 
or  not,  as  is  the  case  on  the  Austrian  frontier),  or  with  what  I 
shall  say  by  way  of  writing  to  others  ;  but  it  has  the  bounden 
duty  to  protect  this  my  primordial  right,  and  wait  till  I  abuse 
it,  as  it  does  not  tie  my  arms,  to  prevent  theft  or  murder,  but 
waits  until  the  use  of  these  limbs  has  been  abused.  Liberty  of 
the  press  is  in  principle  as  proper  or  improper  a  term  as  lib- 
erty of  breathing,  talking,  walking,  thinking,  working,  would 
be,  and  its  being  guaranteed  in  the  fundamental  laws  of 
nations  is  explainable  only  by  the  continued  efforts  of  power 
to  restrain  it,  which  are  more  frequently  successful  because 
they  do  not  interfere  with  the  physical  interest  of  man,  nor 
directly  with  the  great  number;  yet  it  is  of  equally  essential 


PRIMORDIAL  RIGHTS. 


185 


importance,  because  man  is  man  by  his  intellect  more  than 
by  his  body,  and  it  affects  equally,  though  not  so  directly, 
the  welfare  of  the  whole  man.  All  nations,  therefore,  ad- 
vanced in  civil  liberty,  have  returned  to  it ;  it  is  a  return,  and 
not  the  establishing  of  a  new  thing,  as  has  been  shown,  for 
the  interference  with  it  is  an  abridgment  of  the  right  of 
communion. 

It  is  not  said  that  utterance,  though  necessary  for  me  in  my 
character  as  man,  may  not  be  regulated  or  suspended.  Though 
I  have  as  man  the  indisputable  right  of  utterance  which  no 
power  on  earth  has  a  right  to  wrest  from  me,  any  more  than 
to  cut  off  my  arms,  yet  I  have  not  the  right  to  use  it  every- 
where and  on  all  occasions.  So  does  my  right  of  locomotion 
not  entitle  me  to  go  where  I  choose,  into  my  neighbor's  field, 
closet,  etc.  I  am  not  allowed  to  speak  loud  in  a  church,  in  a 
deliberative  assembly.  When  the  Dutch  Colonel  Haraugiere, 
in  1590,  hid  himself  with  his  seventy  men  on  board  the  peat- 
vessel,  to  be  dragged  into  the  fortress  of  Breda,  occupied  by 
the  Spaniards,  he  had  a  right  to  declare  that  a  single  word 
uttered  should  be  instantly  punished  with  death.  The  same 
order,  if  I  remember  right,  is  said  to  have  been  given  by 
General  Wayne  when  he  marched  to  capture  Stony  Point.  It 
is  done  not  unfrequently.  So  may  utterance  by  writing  be 
suspended  or  limited  ;  for  instance,  who  would  deny  the  com- 
mandant of  a  besieged  fortress  this  right,  if  he  was  afraid  of 
a  mutinous  spirit?  The  same  may  take  place  in  a  rebellious 
province,  and  under  certain  circumstances  in  a  whole  country 
during  a  time  of  war.  But  all  these  are  exceptions,  as  by  way 
of  exception  the  police  may  examine  my  rooms,  whether  I 
ventilate  them  properly,  for  instance,  in  times  of  a  general 
infection. 

XLVIII,  7.  As  my  intellect  has  its  primordial  right,  so  has 
my  moral  character.  The  state  has  to  protect  virtue :  hence 
all  immoral  laws  are  ipso  facto  invalid,  be  they  customary  or 
not;  the  state  or  any  authority  cannot  require  an  immoral  act 
or  permit  a  crime ;  and  each  one  has  a  right  to  protect  his 


1 86  THE  STATE. 

morality.  And  if  it  had  been  the  custom  of  centuries  for 
feudal  lords  to  claim  the  jus  prinicB  noctis  (and  what  unright- 
eousness has  not  been  termed  at  times  a  riglit  f)  or  marclictta 
inulienmi,  any  bride,  or  her  father,  brother,  or  husband  for 
her,  had  the  undoubted  right  to  defend  her  virtue  even  at  the 
risk  of  the  life  of  the  offender.  Man's  virtue  is  his  very  self, 
and  the  state  is  there  to  protect  it,  all  customs,  laws  and 
statutes,  commands  and  injunctions,  however  old  or  from 
whatever  authority  or  however  long  acquiesced  in,  to  the 
contrary;  for  the  primordial  rights  reappear  with  each  human 
being  qua  man  alone,  and  not  by  way  of  charter,  grant,  or 
specific  relation  to  the  state,  in  all  their  native  power  and  im- 
portance. It  may  not  be  expedient  at  times  to  insist  on  them. 
A  husband  whose  bride  was  thus  claimed  might  think  that 
resistance  would  inevitably  lead  to  his  death  and  a  consequent 
still  greater  exposure  of  his  bride.  This  is  for  him  to  calcu- 
late; I  speak  of  right  only.^  (See  the  highly  immoral  laws 
in  Blount's  Fragmenta  Antiquitatis,  or  Antient  Tenures  of 
Land,  new  edition,  by  Joseph  Beckwith,  York,  1784,  page  124, 
and  other  passages.)  Philip  II.  could  not  rightfully  authorize 
any  person  to  murder  the  Prince  of  Orange,  nor  could  Charles 
II.  authorize  the  assassination  of  Cromwell.  No  king  can 
order  any  person  to  murder  another,  as  Philip  ordered  Perez 
to  murder  Escovedo  without  process,  on  account  of  weighty 
reasons  respecting  himself  (the  king)  and  the  crown,  and  well- 
proved  facts.  Napoleon  could  not  order  courts-martial  to  find 
persons  guilty,  as  he  has  been  charged  with  doing. 


•  *  The  following  interesting  case  is  copied  from  Roberts,  Life  of  the  Duke  of 
Monmouth,  ii.  88,  who  copies  from  Chilton  Priory  :  "  While  Lord  Feversham  was 
entertaining  himself  with  executing  the  prisoners  [after  the  battle  of  Sedge- 
moor], —  for  instance,  turning  so  many  off  at  each  health, —  some  officers  went  to 
Weston.  One  entered  the  family  house  of  the  Bridges  aiid  offered  the  grossest 
insult  to  the  lady  of  the  house  in  the  presence  of  her  family.  Her  daughter 
Mary,  between  eleven  and  twelve  years  old,  drew  the  officer's  sword  and  stabbed 
him  dead.  Mary  was  tried  by  a  court-martial  ordered  by  Colonel  Kirke, — a 
monster  himself, — and  was  not  only  acquitted,  but  received  the  sword,  with  the 
injunction  that  it  should  descend  to  the  Mary  Bridgeses  in  the  family.  It  is  still 
in  existence,  now  owned  by  Mary  Bridges  of  Bishop's  Hill,"  etc. 


PRIMORDIAL  RIGHTS. 


187 


XLIX.  8.  As  a  moral  being,  obliged  by  nature  to  live  in 
society,  every  one  has  a  right  of  honor  or  reputation,  that  is, 
the  acknowledgment  of  his  worth  as  a  man  and  citizen  must 
be  protected,  for  upon  it  his  existence,  and  whole  relation  to 
society,  to  which  he  has  a  primordial  claim,  depend.  The 
worth  of  an  individual  may  be  strictly  moral  (as  man),  polit- 
ical (as  citizen),  or  consist  in  his  capacity  or  in  his  general 
fitness  for  social  intercourse.  The  state  therefore  has  the 
duty,  because  each  one  has  a  natural  claim  to  it,  to  protect 
the  acknowledgment  of  each  one's  human  and  civil  worth  by 
the  omission  of  all  actions  which  may  convey  the  declaration 
that  the  individual  in  question  is  unworthy  of  esteem  as  a 
man  or  citizen.  (Feuerbach,  Manual  of  Penal  Law,  §  271.) 
As,  however,  free  utterance  is  an  equally  important  right,  and 
as  society  and  consequently  each  individual  has  the  greatest 
interest  in  free  discussion,  without  which  no  advance  in  civili- 
zation is  possible,  it  is  exceedingly  difficult  to  ascertain  the 
precise  limits  between  the  two,  and  various  nations  have  of 
course  differed  very  materially  upon  this  point.  The  follow- 
ing are  some  general  rules :  a.  The  less  a  charge  against  the 
honor  or  reputation  of  an  individual  carries  with  it  the  pos- 
sible remedy,  the  more  does  the  individual  stand  in  need  of 
protection  against  it.  All  slander  belongs  to  this  class,  be- 
cause it  is  against  the  private  character  of  a  person,  and  it 
lies  in  the  nature  of  things  that  publicity  cannot  prove  the 
contrary.  A  woman's  chastity  is  her  honor ;  attacks  against  it 
imperatively  require  protection ;  but  if  the  opposition  charge 
a  minister  with  selfish,  even  traitorous,  designs,  in  these  gen- 
eral terms,  he  may  leave  it  safely  to  the  publicity  of  his 
actions  to  prove  the  contrary,  b.  If  the  state  takes  away  the 
means  by  which  otherwise  an  individual  would  repel  charges 
against  his  honor,  it  is  the  more  bound  to  protect:  for  instance, 
it  ought  to  punish  the  utterance  of  such  epithets  as  are  con- 
sidered dishonorable  by  the  society,  called  injuria  in  the 
European  continental  law.  The  English  law  acknowledges 
this  necessity  but  in  a  very  limited  degree.  The  Roman  law 
distinctly  protects  the  civil  honor  or  dignity  as  such.     The 


1 88  THE  STATE. 

jurist  Callistratus  defines  the  existimatio  as  being  status  illcescB 
dignitatis^  legibtis  ac  inoribiis  comprobatus.  (Theodore  MarezoU 
on  Civil  Honor,  in  the  German,  Giessen,  1824.)  c.  The  more 
an  attack  upon  a  man  is  directed  against  his  capacity,  skill,  or 
performance  of  duty  as  the  means  of  maintaining  himself  or 
acquiring  property,  the  more  it  requires  the  action  of  the 
state.  This  is  perhaps  chiefly  on  the  ground  that  the  state 
shall  protect  my  property  and  myself  in  the  process  of  ac- 
quiring it.  Yet  the  previous  rule  holds,  that  if  the  charge 
carries  its  possible  remedy  with  it,  it  does  not  so  much,  if  at 
all,  require  public  action.  If  a  person  charges  a  physician 
with  being  a  quack,  it  is  a  serious  attack;  but  if  a  reviewer 
says  that  a  physician,  in  the  reviewed  book,  has  shown  him- 
self a  quack,  and  gives  the  facts  by  which  he  thinks  to  sup- 
port his  charge,  the  same  necessity  does  not  exist.  A  professor 
of  a  university  depends  for  support  upon  his  capacity;  but  if 
a  person  says  he  knows  no  more  than  his  freshmen,  he  has 
ample  means  of  proving  the  contrary,  d.  The  more  definite 
the  charge,  and  the  more  it  implies  a  crime  or  gross  im- 
morality, the  more  it  requires  to  be  repressed.  It  is  a  very 
serious  charge  against  a  whole  cabinet  of  the  English  crown 
that  all  the  members  are  "  shabby,  silly,  truckling,  and  fo- 
menting revolt,"  as  thousands  of  times  the  Melbourne  admin- 
istration were  called:  but  what  is  "shabby,  silly?"  As  to 
fomenting  revolt,  their  conduct  is  public,  let  them  abide  by  it. 
But  when  Mr.  O'Connell  publicly  charged  the  Tory  commit- 
tees of  the  commons  with  "foul  perjury,"  they  were  right  to 
take  up  the  matter,  if  they  felt  a  clear  conscience.  Had  he 
stated  at  once  why  he  charged  them  so,  the  case  would  not 
have  been  so  urgent,  according  to  the  rule  given  as  the  first.' 
e.  Charges  which  interfere  with  the  right  of  free  social  inter- 
course require  public  action.  If  a  person  say  of  another  that 
he  is  afflicted  with  a  malady  which  renders  him  unfit  for  con- 
tact, it  is  doubtless  most  serious  slander. 


'  See,  however,  Mr.  O'Connell's  speech,  after  having  been  reprimanded  by  the 
Speaker,  according  to  a  vote  of  the  house,  on  February  28,  1838. 


PRIMORDIAL  RIGHTS. 


189 


L.  9.  We  have  seen  how  important  an  element  of  all  that 
is  human  the  family  is,  and  a  man  has  a  right  to  be  protected 
and  not  interfered  with  in  his  sacred  family  relations.  Who  is 
destined  by  nature  to  be  the  protector,  cherisher,  and  foster- 
ing guardian  over  the  body,  mind,  and  virtue  of  children,  if 
not  the  parents  ?  A  Greek  merchant  told  me,  during  my 
sojourn  in  Greece,  that  AH  Pacha,  of  Janina,  sent  once  for  his 
daughter,  "  because  he  had  seen  her  on  a  ride,  and  she  had 
pleased  him," — of  course  that  she  was  to  be  installed  in  his 
seraglio,  and,  as  was  the  custom,  to  be  married  after  some 
years  to  one  of  his  menials.  The  father  would  have  had  the 
undoubted  right  to  defend  his  daughter  in  any  way  whatso- 
ever ;  the  question  could  only  be  as  to  expediency.  If  the 
authorities  forcibly  carry  away  children  from  their  parents  to 
educate  them  in  some  specific  religion,  and  on  no  ground  of 
unfitness  of  the  parents  for  their  important  task,  they  have 
the  right  to  defend  their  offspring  by  any  means  whatsoever-, 
though  they  may  abstain  from  using  it,  in  order  not  to  ex- 
pose the  life  of  the  children,  or  their  own,  as  necessary  for  the 
support  of  their  children. 

LT.  10.  Theodoric  writes  to  the  Roman  senate,  "religionem 
imperare  non  possumus,  quia  nemo  cogitur  ut  credat  invitus." 
If  religion  means  all  that  appertains  to  man's  relation  to  God, 
it  is  evident  that  as  it  is  not  an  individual  relation  to  any 
other  human  individual,  it  cannot,  in  its  very  essence,  ever 
become  a  matter  of  the  state,  because  the  state  has  to  do 
with  jural  relations  only,  and  these  must  exist  bf^tween  man 
and  man ;  there  is  no  other  relation  of  right  imaginable. 
(Property,  a  relation  between  an  individual  and  a  thing,  be- 
comes a  matter  of  right,  a  jural  relation  only,  inasmuch  as 
others  are  excluded  from  that  property ;  it  signifies  therefore 
again  a  relation  between  two  individuals.)  The  state  cannot, 
even  were  it  to  try,  seize  upon  religion.  Properly  speaking, 
therefore,  liberty  of  conscience  has  no  meaning;  the  state 
cannot  reach  it.  We  might  as  well  say  liberty  of  taste.  How 
can  the  state  reach  my  taste  ?     Unfortunately,  however,  the 


190  THE  STATE. 

term  has  acquired  but  too  definite  a  meaning.  Facts  and 
outward  actions  are  the  only  things  for  which  the  state  has 
an  organ ;  how,  then,  can  it  approach  the  thoughts  and  feel- 
ings ?  Hallam  (note  to  page  308,  vol.  i.)  speaks  of  the  "  false 
and  mischievous  position  of  Hooker,"  whom,  however,  he 
justly  values  for  his  writings,  "that  the  church  and  common- 
wealth are  but  different  denominations  of  the  same  society." 

It  is  otherwise  with  the  publicly  professed  creeds,  modes 
of  worship,  and  churches,  that  is,  religious  societies  of  the 
same  doctrine,  discipline,  and  government.  These  are  tan- 
gible by  the  state;  they  can  claim  protection  if  innocuous,  or 
may  be  interfered  with  if  they  interfere  with  the  jural  rela- 
tions of  others — for  instance,  if  they  should  palpably  promote 
immorality.  If  the  English  thought  it  right  to  acknowledge 
Elizabeth  as  their  queen,  they  were  right  to  enact  laws 
against  public  Roman  Catholic  worship  and  the  public  pro- 
fession of  its  creed  ;  not  because  it  was  Roman  Catholic  re- 
ligion— it  is  detestable  and  criminal  for  the  state  to  interfere 
with  religion  as  religion — but  on  strictly  civil  grounds ;  be- 
cause the  pope  had  excommunicated  the  queen,  had  called 
upon  the  Catholic  princes  to  conquer  her  lands,  and  had  ab- 
solved the  English  from  their  allegiance ;  because  the  Cath- 
olics were  known  to  acknowledge  him  as  their  spiritual  chief 
and  consider  Mary  Stuart  as  lawful  queen  of  England;  be- 
cause it  was  the  age  when  assassinations  on  religious  grounds 
were  extolled,  the  murderers  of  Orange,  Henry  III.,  and 
Henry  IV.  were  praised  and  publicly  compared  to  characters 
of  the  Old  Testament ;  because  fearful  slaughters  had  been 
perpetrated,  and  a  renewed  and  most  vigorous  reaction  in 
favor  of  Catholicism  had  taken  place  all  over  Europe.  (See, 
for  the  last  remark,  Ranke's  excellent  work,  The  Popes,  their 
Church  and  State,  books  v.,  vi.,  vii.)  I  do  not  say  by  any 
means  that  the  laws  were  good  in  detail,  nor  can  we  justify 
persecution  for  Catholicism,  for  this  implies  that  it  is  for 
religion  and  not  for  infringed  rights.  It  was  wrong,  there- 
fore, to  put  men  on  their  oaths  in  order  to  find  out  whether 
they  were   or  were    not   Catholics,  because    merely  believ- 


PRIMORDIAL  RIGHTS. 


191 


ing  one  dogma  or  the  other  is  not  a  thing  tangible  by  the 
state. 

The  principle  which  the  Catholics,  and,  after  them,  some 
early  Protestants,  have  professed,  that  the  church  has  nothing 
to  do  with  the  heretic  except  to  excommunicate  him,  and 
to  hand  him  over  to  the  secular  authority,  which  may  punish 
him  if  it  chooses,  was  right  on  the  side  of  the  church.  But 
if  so,  whence  does  the  secular  authority  derive  the  right 
to  punish  the  heretic  qua  heretic  ?  As  such  he  has  been 
already  excommunicated.  We  all  know  how  hypocritically 
this  principle  was  acted  out !  History  weeps  over  the  slaugh- 
tered millions,  the  vast  multitudes  of  homeless  exiles,  which 
she  has  had  to  record  against  Catholic  and  Protestant.  When- 
ever the  state  has  felt  itself  obliged,  and  has  had  the  power,  to 
act  upon  religion  (and  not  on  worship,  or  church  matters,  in 
as  far  as  they  can  become  matters  of  jural  relations),  misery 
has  been  the  consequence.  Philip  II.  and  the  people  of  Spain 
in  general  always  considered  the  crown  of  Spain  as  not  purely 
political,  but  as  possessing  a  strong  religious  element.  He  was 
the  propagator  of  Catholic  faith  in  foreign  regions,  its  support 
or  the  extirpator  of  heresy  in  Europe;  and  what  has  been  the 
consequence  ?  The  Netherlands  were  drenched  with  blood 
for  years  and  years  ;  murder  and  rapine  ruled;  Spain,  where 
many  were  inclined  towards  Protestantism,'  was  crippled  in 
all  her  energy,  mental  and  industrial,  by  the  Inquisition, 
which  degraded  a  noble  nation  to  such  depth  that  it  seems  it 
can  be  roused  but  by  one  solitary  agent,  religious  fanaticism  ; 
with  its  population  diminished,  frankness  of  character  gone, 
energy  enervated,  knowledge  oppressed,  morality  lowered, 
and   the    nation    unfitted,  from    mere   exhaustion,  not   from 


'  Tlie  Venetian  ambassador  in  Spain — and  the  Venetian  ambassadors  formed 
at  that  time  a  class  of  the  shrewdest  observers  and  most  faithful  reporters  to  their 
government — writes  home,  under  date  of  August  25,  1562,  "  I  assure  your  high- 
ness, no  religious  movement  on  a  large  scale  wonld  be  desirable  for  this  country : 
there  are  many  who  long  for  a  change  of  religion."  This,  and  extracts  of  other 
reports,  in  Ranke,  as  above,  vol.  ii.  p.  21.  The  Inquisition,  therefore,  became 
more  active.     There  was  much  Protestantism  in  the  south  of  France. 


192  THE  STATE. 

tumultuous  ebullitions  of  strength,  to  settle  into  peace  ;  her 
colonies,  like  the  mother  country,  without  character  or 
energy,  knowledge  or  manliness,  turning  in  weakness  from 
one  change  to  another.  It  was  a  melancholy  time  indeed ! 
Everything  seemed  to  turn  upon  religion ;  everywhere  were 
dogmas  taken  for  religion ;  everywhere  busy  hatred  and  dis- 
cord, bitter  controversy,  uncharitable  accusations,  and  wilful 
misunderstanding ;  religious  and  civil  wars  everywhere.  A 
time  when  people  thought  they  had  obtained  somewhat  of  re- 
ligious liberty  because  the  peace  of  religion,  between  the  Ger- 
man Catholics  and  Protestants,  in  1555,  guaranteed  to  all  who 
should  differ  in  religion  from  the  prince  of  the  respective 
country  protection  against  personal  persecution,  and  the  right 
to  emigrate  after  selling  their  property  (in  which,  however, 
they  were  often  exceedingly  oppressed) !  A  period  when  the 
government  of  Geneva  burnt  Servetus  for  not  entertaining  the 
common  opinion  respecting  the  Trinity,  prompted  in  doing  so 
by  Calvin,  and  approved  of  by  nearly  the  whole  Swiss  Prot- 
estant clergy  ;  when  even  a  Melanchthon,  known  for  the  mild- 
ness of  his  character,  expressed  his  assent  to  this  evil  deed 
(see  Calv.  Epist,  ed.  Amstel.,  p.  92) ;  when  Luther  was  one 
of  the  very  few  prominent  men  who  strongly  opposed  the 
killing  for  heresy  on  any  account;'  when  Beza,  to  justify 
Calvin,  published  his  De  Hasreticis  a  civili  Magistratu  puni- 
endis,  a  translation  of  which  was  afterwards  laid  before  the 
magistrates  of  Friesland  by  some  Calvinist  ministers,  in- 
sisting on  the  adoption  of  its  principles — namely,  the  killing 
of  heretics — against  the  inoffensive  Arminians  because  they 
could  not  entirely  adopt  Calvin's  doctrine  of  predestination 
(Brandt,  Historic  der  Reformatie  in  de  Nederlanden,  II.  D.  Bl, 


'  Luther  wrote,  "  Auctoritate  ejus  statuti  impii  Magistratus  pseudoprophetas  et 
liKreticos  interfecerunt  quosquos  voluerunt.  Idem  sequuturum  esse  timeo  et  apud 
nostros,  si  semel  uno  exemplo  licitum  probari  poterit,  seductores  esse  occidendos, 
cum  adhuc  apud  Papistas  videamus  hujus  instituti  abusu  innocentem  sanguinem 
fundi  pro  nocente.  Qiiare  ntiUo  modo  possum  admittere,  fahos  doctor es  occidi ; 
satis  est  eos  relegare,  qua  pcena  si  posteri  abuti  volent,  mitius  tamen  peccabunt  et 
sibi  tantum  nocebunt."     De  Wette,  Letters,  iii.  1013. 


PRIMORDIAL  RIGHTS.  1 03 

9-13);  and  when  the  Calvinists,  in  turn,  were  oppressed  in 
Saxony  by  the  Lutherans,  and  people  persecuted  for  crypto- 
Calvinism!  The  age  when  an  Edward  Coke,  in  the  very 
debates  on  the  Petition  of  Right,  which  was  to  erect  an  in- 
superable bulwark  around  personal  liberty,  could  excuse  the 
imprisonment  for  life  of  the  children  of  the  Irish  rebels,  in  the 
Tower,  by  saying  that  it  had  served  for  their  salvation,  be- 
cause otherwise  they  would  have  been  Catholics  !  When 
neither  the  Church  of  England  nor  the  Presbyterians,  when 
no  one  sect  sufficiently  large  to  claim  power  at  all,  could 
elevate  itself  above  dogmatic  exclusiveness  and  the  conse- 
quent spirit  of  persecution  and  ecclesiastic  arrogance. 

LII.  II.  Property,  or,  to  use  a  term  more  fitted  because 
more  comprehensive,  acquisition,  is  another  primordial  right, 
by  which  I  mean  all  a  man  owns,  acquires,  and  the  means 
wherewith  he  acquires,  that  is,  labor,  skill,  and  exchange. 
Every  man  has  a  right,  because  it  is  his  bounden  duty,  to 
maintain  himself  and  his  family,  he  has  a  fair  share  in  the 
means  of  support  offered  by  nature,  and  the  right  of  acquiring 
property  in  the  various  ways  indicated  above,  where  I  treated 
of  property,  because  appropriation,  acquisition,  properly  be- 
longs to  his  nature.  I  have  a  primordial  right  to  use  my 
labor  as  I  choose,  if  I  do  not  thereby  transgress  the  rights  of 
others,  and  the  state  must  neither  disturb  me  in  this  lawful 
pursuit,  nor  allow  others  to  disturb  me,  for  instance,  by  pre- 
scribing to  me,  directly  or  indirectly,  the  hmits  below  or  above 
which  I  ought  not  to  go,  as  the  trade's-unions  of  late  have 
done.  Exchange  is  one  of  the  most  lawful,  necessary,  and 
natural  means  of  acquisition,  founded  in  the  variety  of  soil, 
climate,  genius  of  the  people,  agents  of  nature,  etc.,  and  one  of 
the  first  and  most  effective  means  of  civilization.  Exchange 
lies  in  the  great  order  of  things,  and  a  disturbance  of  it  is 
always  productive  of  injurious  consequences.  It  ought  never 
to  be  interfered  with  any  farther  than  is  absolutely  necessary, 
but  never  to  promote,  as  it  is  called,  the  interests  of  the  many. 
No  one  has  a  right  to  do  it,  be  it  the  daily  and  hourly  ex- 


194  THE  STATE. 

change  of  labor  and  property  in  a  community,  or  between 
nations  by  way  of  extensive  commerce.  Perhaps  nine-tenths 
of  all  the  wars  of  the  last  three  centuries  have  arisen  out  of 
disregard  of  this  primitive  right  and  that  of  religion. 

Society  is  deeply  interested  in  the  protection  of  the  right 
of  property,  because  the  whole  progress  of  society  is  con- 
nected with  it.  Fraser,  in  his  Persia,'  gives  an  account  of  a 
china-maker  who  had  made  some  improvement  in  china  ware, 
and  was  sent  for  by  the  court  to  make  som.e  for  the  shah,  and 
of  course  for  all  the  courtiers.  To  save  himself,  he  bribed 
the  officer  who  was  to  carry  him  to  report  that  he  was  not 
the  man,  because  his  going  to  court  a-nd  making  china  for  the 
court  would  have  ruined  him,  and  he  forswore  attempting  any 
further  improvements.  It  is  a  striking  anecdote,  but  in  point. 
Mr.  Elphinstone,  in  the  work  already  quoted,  mentions,  on 
p.  255,  that  a  man  at  Peshawur,  a  very  large  town  in  Afghan- 
istan, wished  to  remit  his  money  to  India,  and  came  by  night 
to  his  secretary  to  count  it  out.  "  These  precautions,"  adds 
the  author,  "  were  not  taken  from  any  present  danger,  so  much 
as  with  the  view  to  futurity." 

There  is  no  right  more  essential  to  man,  as  man,  than  that 
of  acquisition — of  property ;  yet  none  calls  for  more  modifica- 
tion and  regulation  by  the  state,  because  it  relates  more  than 
any  other  right  to  the  material  world,  and  more  affects  in  its 
enjoyment  the  jural  relations  of  others.  All  may  live  at  the 
same  time,  all  follow  their  conscience  in  matters  of  religion, 
but  one  only  can  own  the  same  piece  of  land.  The  legislation 
of  every  country,  therefore,  has  necessarily  acted  upon  the 
subject;  nor  has  property  ever  been  considered  as  a  right 
which  could  on  no  consideration  be  abolished  and  remodelled. 
Lycurgus  made  a  new  division  ;  the  French  made  a  new  dis- 
tribution of  a  large  portion  of  landed  property.     It  is  easily 


»  Vol.  XV.  of  Edinburgh  Cabinet  Library.  On  page  312  is  related  another  anec- 
dote, not  entirely  out  of  place  here.  A  merchant  had  himself  daily  bastinadoed, 
and  finally  could  bear  a  thousand  strokes  with  a  stick,  so  that  he  might  be  well 
accustomed  to  it  if  the  governor  should  send  for  him,  to  beat  out  the  confession 
where  his  treasures  were  hiilden. 


EMIGRA  TION. 


195 


explainable;  every  one  has  an  absolute  right  of  acquisition 
by  labor,  but  there  are  many  other  means  of  acquisition,  not 
absolutely  founded  in  nature,  but  found  to  be  the  best  for  the 
welfare  of  society.  These,  of  course,  may  be  changed :  for 
instance,  the  laws  of  inheritance ;  everywhere  they  are  entirely 
dependent  upon  legislation.  Nowhere,  however,  except  in 
the  rude  despotisms  of  force,  is  the  acquisition  by  one's  own 
labor  interfered  with  on  the  score  of  preventing  too  large  for- 
tunes, though  their  accumulation  by  other  means  is  interfered 
with, — for  instance,  in  England,  by  prohibiting  the  accumula- 
tion of  a  fortune  for  a  remote  descendant.  (Peter  Thellusson's 
curious  will,  which  occasioned  the  passing  of  39th  and  40th 
Geo.  III.,  c.  98.) 

LIII.  12.  Lastly,  the  individual  has  the  right  to  move  where 
he  pleases :  the  right  of  personal  liberty,  as  well  as  of  exchange, 
would  already  sufficiently  warrant  this  right,  the  right  of  emi- 
gration, of  expatriation.  Next  to  my  life,  is  the  place  where 
I  live,  where  I  exchange  my  labor,  the  most  important,  to  me, 
of  all  my  rights  which  touch  the  physical  world.  Special 
circumstances  may  limit  this  right,  as  that  of  utterance,  but 
it  can  only  be  by  way  of  exception,  notwithstanding  all  that 
has  been  said  to  the  contrary  on  the  ground  of  natural  allegi- 
ance— an  idea  which  necessarily  arose  out  of  other  miscon- 
ceptions of  the  relation  between  the  king  and  his  subject.  A 
state  would  have  the  right  to  declare  that  every  native-born 
person  caught  in  arms  against  it  should  suffer  death,  on  the 
score  of  danger.  For  instance,  suppose  the  United  States  to 
be  at  war  with  Mexico.  The  latter  country  would  doubtless 
endeavor  to  obtain  American  captains  to  command  her  ships, 
and  the  United  States  would  have  a  right  to  declare  that  every 
native  American  made  prisoner  in  serving  Mexico  should  die; 
a  law  which  would  be  borne  out  by  the  feeling  of  every  true 
heart,  to  whom  it  is  repugnant  to  fight  against  the  country 
that  bore  him.  But  take  another  case.  Suppose  a  Canadian 
has  resided  twenty  years  in  the  United  States,  and  been  an 
active  citizen;  a  war  breaks  out  between  Great  Britain  and 


ig5  THE  STATE. 

the  United  States ;  suppose,  in  addition,  Great  Britain  is  the 
wrongful  assailer ;  an  English  army  attacks  the  place  where 
the    emigrated    Canadian   resides :    shall    he    not   defend   his 
country  ?  nay,  may  not  his  very  feelings  be  entirely  engaged 
for  the  United  States  ?     There  is  no  natural  relation  between 
subject  and  monarch,  any  more  than  that  it  is  natural  for  man 
to  live  in  society,  in  a  state,  and  that  the  state  has  power  over 
him  for  all  legitimate  purposes,  that  is,  to  protect  him  in  its 
widest  sense,  not  to  interfere  with  him  for  any  other  purpose 
than  to  protect  others  at  the  same  time,  and  of  course  it  must 
be  one  of  the  first  of  all  rights  of  a  free  being  to  choose  that 
place  and  that  society  where  he  thinks  he  may  best  obtain  his 
individual  objects.     It  has  been  asked  by  superficial  thinkers, 
Is  it  man's  highest  object  to  live  well  ?    shall  he  leave  his 
country  the  moment  he  thinks  he  can  find  better  food  some- 
where  else  ?     No,  man   has   far  nobler  objects   than   merely 
good  living;  but  before  all  he  must  obtain  the  common  com- 
forts of  life  for  himself  and  family,  as  the  basis  for  higher 
things,  as  he  has  to  take  care  of  health,  not  as  the  object  but 
as  the  necessary  requisite  for  a  sound  life,  a  life  that  answers 
its  purposes.     If  over-population  or  over-taxation  grind  down 
a  man  so  that  he  can  hardly  obtain  food  for  his  family,  still 
less  elevate  them  morally  and  intellectually,  and  he  has  an 
opportunity  to  remove  to  an  unoccupied  virgin  soil,  which, 
like  a  kindly  friend,  readily  answers  to  every  exertion  with 
ungrudging  abundance,  shall  such  a  man  linger  out  a  life  of 
wretchedness,  and  bring  up  his  children  in  sloth  and  igno- 
rance, merely  to  satisfy  a  theory  ?    shall  he  forget  his  most 
sacred  duties  towards  himself  and  his  family, — that  is,  to  toil 
hard  to  become  independent,  a  noble  object  to  every  man, — 
because  some  conceive  it  unpoetical  to  leave  the  native  soil 
for  a  better  one,  though  there  is  poetry  in  an  emigrant  who 
goes  with  nothing  but  a  willing  arm  and  his  plough,  a  con- 
queror, to  the  West?     It  is  the  order  of  things  to  emigrate  ; 
but  if  a  man  has  a  right  to  emigrate  he  has  likewise  the  right 
of  expatriation — for  man  ought  to  be  a  cithen,  according  to 
his  destiny.     I  have  spoken  already  of  the  fact  that  no  nation 


ALLEGIANCE. 


197 


was  more  given  to  emigration,  and  thereby  did  confer  incal- 
culable advantages  upon  mankind,  than  the  Greeks ;  yet  who 
loved  their  country  more  ?' 

LIV.  I  shall  return  to  the  subject  of  natural  allegiance 
when  I  speak  of  patriotism.  Here  I  would  inquire,  Where 
does  that  relation  exist,  if  natural  means  material  ?  The  son 
is  naturally  related  to  his  father,  and  that  relation  cannot  pos- 
sibly be  dissolved,  but  that  of  allegiance  has  been  dissolved 
a  thousand  times.  Why  is  there  an  oath  of  allegiance  ?  We 
do  not  swear  to  be  the  sons  of  our  mothers ;  and,  above  all, 
why  have  all  oaths  of  allegiance  ever  been  held,  when  neces- 
sity arose,  as  conditional  only  ?^  When  an  English  king  dies, 
his  queen  yet  living,  and  no  direct  descendant  of  the  king 
succeeds,  allegiance  is  sworn  to  the  new  monarch  saving  the 
rights  of  any  issue  of  the  late  king,  or,  in  other  words,  on 
condition  that  within  proper  time  the  queen  dowager  do  not 
give  birth  to  a  direct  successor,  as  was  the  case  respecting 
Queen  Victoria.  (See  proclamation  dated  Kensington,  June 
20,  1837.)  Does  this  not  abundantly  prove  that  allegiance  is 
a  political  and  not  a  natural  relation,  if  the  latter  word  be  used 
in  contradistinction  to  the  former?  though  I  know  that  this 
goes  directly  against  Lord  Coke,  where  this  opinion  is  called 
the  "error  of  the  Spencers,  that  the  homage  and  oath  of  le- 
geance  was  more  by  reason  of  the  king's  crown  (that  is,  of 
his  politique  capacity)  than  by  reason  of  the  person  of  the 
king,  which  was  condemned  by  two  parliaments,  one  in  the 


^  [Their  country  was  their  nokig.  There  was  little  love  to  Hellas,  such  as  we 
feel.     No  race  was  ever  more  broken  up.] 

*  Mr.  Raumer,  whom  I  quote  here  because  he  is  a  decided  royalist, — not,  in- 
deed, an  absolutist, — in  speaking  of  the  Portuguese  revolution,  by  which  the 
duke  of  Braganza  was  made  king,  against  Philip  II.  of  Spain,  and  after  having 
stated  the  sound  reasons  of  the  Portuguese  for  breaking  their  allegiance,  adds  as 
his  own  remarks,  "  History  shows  there  is  a  measure  of  tyranny  from  above 
downward,  to  suffer  which  slavishly,  becomes  a  crime."  To  avoid  misquoting, 
I  continue  his  remarks  :  "  And  that  on  the  other  hand,  at  times,  such  a  desire  of 
opposition,  disobedience,  and  revolt  becomes  so  prevalent  among  nations  that  no 
government  remains  possible."     History  of  Europe,  etc.,  vol.  v.  p.  474. 


198 


THE  STATE. 


reign  of  Edw.  II.,  called  Exilium  Hugonis  le  Spencer,  and  the 
other  in  I.  Edw.,  cap.  i."  (Calvin's  Case,  Coke's  Reports,  part 
vii.)  The  old  English  jurists  speak  of  a  law  of  nature  above 
parliament — and  so  no  doubt  it  is — according  to  which  exists 
the  indissoluble  tie  between  subject  and  liege  lord  or  lady,  so 
that  outlawry  could  not  even  affect  this  natural  tie.  (See  the 
same  case  in  Coke's  Reports.)  British  history,  as  we  all 
know,  abundantly  proves  the  contrary,  for  the  tie  has  been 
dissolved.  Blackstone  (i.  369)  says,  "  Natural  allegiance  is 
therefore  a  debt  of  gratitude ;  which  cannot  be  forfeited,  can- 
celled, or  altered  by  any  change  of  time,  place,  or  circum- 
stance, nor  by  anything  but  the  united  concurrence  of  the 
legislature."  Not  to  speak  here  of  the  unphilosophical  foun- 
dation of  a  general  civil  obligation,  and  not  a  specific  one, 
upon  the  basis  of  gratitude  —  for  suppose  the  citizen  feels  no 
gratitude,  and  is  right  in  not  feeling  it,  because  nothing  has 
been  bestowed  upon  him  to  be  thankful  for,  as  certainly  may 
be  the  case  if  the  monarch  does  not  protect,  but,  on  the  con- 
trary, strives  to  undermine  the  laws — secondly,  that  gratitude 
is  altogether  a  feeling  over  which  the  state  has  no  control, 
and  therefore  no  power  to  demand  it — thirdly,  that  this  grati- 
tude for  protection  would  be  owing  not  to  the  king's  person 
(for  how  can  he  personally  protect  me?),  but  to  the  state,  in 
and  by  which  he  is  king — not  to  speak  of  all  these  objections, 
Blackstone  contradicts  himself,  if  he  means  by  natural  allegi- 
ance anything  like  that  claimed  by  the  old  British  lawyers, 
because  in  that  case  it  indicates  a  relation  between  two  indi- 
viduals, indelibly  stamped  upon  both  by  nature,  that  is,  by 
birth;  yet  the  commentator  says  in  the  same  sentence  that 
allegiance  may  be  dissolved  by  the  united  concurrence  of  the 
legislature.  Can  parliament  declare  a  man  not  to  be  the 
brother  of  his  father's  son?  can  it  declare  a  native  English- 
man not  to  be  a  native  Englishman?  Natural  allegiance 
without  unconditional  allegiance  is  a  logical  absurdity,  yet 
surely  this  is  in  the  eye  of  every  Briton  a  political  heresy. 
For  if  the  subject  owes  allegiance  only  so  long  as  the  monarch 
does  not  destroy  instead  of  protecting  the  objects  of  the  state, 


ALLEGIANCE. 


199 


— and  no  one  will  now  be  so  hardy  as  to  maintain  that  sub- 
jects must  submit  without  resistance  to  a  Heliogabalus, — 
then  allegiance  to  a  monarch  is  a  thing  made  by  law,  which 
law,  it  is  allowed,  may  rest  on  ancient  custom,  yet  it  can  be 
unmade;  and,  what  is  more  important,  it  is  to  the  crown,  that 
is,  to  the  state,  not  to  the  person  of  the  king.  If  not,  how  is 
it  with  the  allegiance  of  the  French,' who  have  sworn  it  within 
the  last  forty  years  to  ever  so  many  persons  and  governments? 
The  argument  would  have  been  much  more  plausible  if  natu- 
ral allegiance  had  been  represented  as  depending  upon  our 
nativity  within  the  bosom  of  the  particular  nation,  and,  through 
it,  connected  with  the  monarch — in  short,  if  national  allegi- 
ance had  been  claimed;  and  the  deep-rooted  feeling  of  every 
true  heart  towards  the  nation  to  which  we  belong  by  blood 
would  have  afforded  afar  better  foundation  for  allegiance  than 
the  very  feeble  one  of  gratitude;  for  our  love  to  the  country 
of  our  birth  outlives  in  many  instances  our  gratitude.  The 
meanest  factory-boy  in  Manchester  may  still  feel  attached  to 
England,  but  it  would  be  very  difficult  to  point  out  what 
reason  he  has  for  gratitude.  Gratitude  is  a  feeling  which  can 
be  called  forth  only  by  bounties  over  and  above  what  I  de- 
serve. Does  the  state  shower  these  bounties  upon  him  ? 
Does  the  state  do  more  than  it  is  absolutely  bound  to  do  ?  Is 
he  not  quit  with  the  state  as  to  gratitude,  every  evening,  after 
an  unrequited  day  of  overwhelming  labor?  Who  is  bound  to 
be  grateful,  the  state,  or  the  poor  man  who  has  always  lived 
by  his  work,  paid  heavy  taxes,  and  finally  is  pressed  into  sea- 
service,  where  he  is  crippled?  The  national  allegiance  can- 
not, according  to  English  law  and  history,  be  severed,  but  the 
allegiance  to  the  monarch  can.  (See  Patriotism,  where  more 
on  national  allegiance  as  a  primitive  element  of  society  will 
be  found.)  In  Macdonald's  case  in  1746,  before  Chief-Justice 
Lee,  the  indissolublencss  of  British  allegiance  was  maintained, 
(For  the  American  doctrine  of  allegiance  see  Kent's  Com- 
ment, ii.  page  41  et  seq.  Important  is  Mr.  Marshall's  (after- 
wards Chief  Justice  of  the  United  States)  speech  in  the  House 
of  Representatives,  on  the  case  of  Robbins,  who  had  been 


200  THE  STATE. 

claimed  by  the  British,  given  up  by  President  J.  Adams,  and 
executed  by  the  former.'  ^ 

LV.  The  rights  which  I  have  called  primordial,  or  some 
of  them,  have  been  termed  by  others  absolute  rights.  (See  i. 
Blackstone,  124.)  This  is  not  a  very  apt  term,  for,  as  the 
sequel  of  this  section  will  show,  there  are  no  absolute  rights, 
if  this  term  mean  either  that  they  cannot  be  abridged,  or  that 
men  cannot  agree  to  give  them  up.  Even  the  absolute  right 
to  life  lias  been  given  up.  The  custom  of  drawing  lots  for 
being  sacrificed  to  some  deity  has  existed  with  various  na- 
tions ;  and  the  doomed  person  was  willing  to  be  sacrificed. 
Though  in  many  instances  the  wives  of  deceased  Hindoos 
were  induced  by  others  to  allow  themselves  to  be  burnt 
with  the  bodies  of  their  late  husbands,  yet  there  are  many 
instances  of  wives  resisting  all  inducement  not  to  be  burnt. 
Still  less  apt  appears  the  term  when  we  consider  that  all 
nations  allow  the  state  to  force  me  to  expose  my  life.  But  the 
term  is  owing  to  that  mistaken  notion  of  a  state  of  nature. 
Blackstone  says,  absolute  rights  are  "  such  as  would  belong 
to  their  persons  merely  in  a  state  of  nature,  and  which  every 
man  is  entitled  to  enjoy,  whether  out  of  society  or  in  it." 
There  is  a  strange  confusion  of  ideas — rights  in  a  state  of 
nature  !  What  is  there  a  man  may  not  do  if  out  of  society  ? 
And  again,  "  which  every  man  is  entitled  to  enjoy."  A  state 
of  nature,  and  yet  entitled,  which  means  having  a  title  to ;  but 
who  gives  the  title?  So  much  for  these  fictions.  Man  never 
lived  in  this  state  of  nature,  because  he  never  lived  or  could 
live  without  law,  in  however  incipient  a  stage  of  civil  develop- 


'  Compare  with  what  has  been  stated  on  these  important  subjects,  Hugo  Gro- 
tius,  Puffendorf,  Chitty,  Vattel,  Blackstone,  Kent,  and  for  the  legal  references,  D. 
Hoffman's  comprehensive  work,  Course  of  Legal  .Study,  2d  ed.,  Baltimore,  1836. 

2  [The  British  government  has  practically  abandoned  this  doctrine  of  inde- 
feasible allegiance  by  a  statute  of  1844,  allowing  one  of  the  principal  secretaries 
of  state  to  grant  all  the  capacities  of  a  native-born  British  subject  except  two  to 
foreigners  desirous  of  being  natiu-alized ;  and  also  by  the  provisions  of  the  con- 
vention with  the  United  States  relating  to  naturalization  in  1870.] 


INALIENABLE  RIGHTS.  201 

ment  this  might  be.  Fictions  make  matters  under  hand  ap- 
parently very  easy ;  but  they  revenge  themselves,  and  we  are 
unable  to  eliminate  them  again,  as  we  may  do  in  mathematics 
with  assumed  terms. 

Others  have  used  the  term  inalienable  rights,  an  expres- 
sion which  would  not  have  been  so  freely  adopted  had  not 
those  who  used  it  started  from  the  idea  that  the  state  is  pro- 
duced by  contract,  in  which  certain  rights  are  given  up  for 
higher  considerations ;  or  had  not  those  who  renewed  the 
more  profound  inquiries  into  the  true  character  of  govern- 
ment found  already  governments  with  extravagant  claims,  or 
which  had  absorbed  almost  all  liberty  already  existing,  when 
it  appeared  necessary  to  show  that  certain  rights  could  not 
be  alienated.  But  the  term  is  liable  to  some  objections. 
Does  inalienable  mean  that  those  rights  cannot  be  alienated  ? 
Facts  speak  against  it.  We  see  people  submit  to  the  priva- 
tion of  all  enumerated  rights.  No  right  is  more  founded  in 
nature  than  that  of  the  father  to  protect  his  child.  Yet  Mr. 
Norris,  in  his  Journey  to  the  Court  of  the  King  of  Dahomey, 
relates  that  children  are  taken  from  their  mothers  and  placed 
in  distant  villages  to  destroy  all  family  feeling.  Is  any  right 
more  sacred  than  that  of  the  husband  to  protect  the  chastity 
of  his  wife  ?  Yet  Mr.  Elphinstone  (as  quoted  previously,  p. 
483)  informs  us  that  "  one  of  the  laws  of  Yaza  forbids  adul- 
tery. The  inhabitants  of  Cariader  applied  for  and  received  an 
exemption  on  account  of  their  old  usage  (called  Kooroon 
Bistaun)  of  lending  their  wives  to  their  guests."  What  can 
be  more  undoubted  than  that  I  have  a  right  to  benefit  by  the 
communion  with  other  minds,  that  no  earthly  power  exists 
which  has  a  right  to  interfere  with  my  thoughts  and  their  de- 
velopment ?  yet  in  Austria  not  only  are  certain  books  pro- 
hibited, but  officers  on  the  frontier  may  refuse  the  importation 
of  any  book  they  deem  unfit,  and  the  people  do  not  seem  to 
consider  it  as  any  peculiar  hardship.  If  any  right  be  inherent, 
it  is  that  of  life ;  yet  when  the  sultan  formerly  sent  a  silken 
cord  to  his  vizier,  he  kissed  it  and  hung  himself,  and  made  no 
effort  to  defend  his  life.    Now,  suppose  the  cord  had  not  been 


202  THE  STATE. 

sent  for  an  alleged  crime ;  surely  that  vizier  had  alienated  the 
right  of  life.  Does  inalienable  right  mean  that  which  the 
people  have  a  right  at  any  moment  to  recover  ?  The  people 
have  the  right  to  recover  or  establish  any  right  v^hatsoever, 
but  they  have  frequently  not  the  means.  What  right  is  there 
that  could  possibly  be  lost  by  way  of  compensation  for  bene- 
fits supposed  to  be  derived  from  a  ruling  dynasty  ?  Nations 
do  not  sell  themselves  as  property.  Does  it  mean  those  rights 
which  ought  not  to  be  alienated?  No  right  ought  to  be 
alienated  which  is  necessary  for  the  well-being  of  the  people, 
nor  is  any  right  irrevocably  alienated,  nor  can  it  ever  be  so.' 

LVI.  Be  it  repeated,  primordial  rights  are  those  which  flow 
directly  from  the  nature  of  man  inasmuch  as  he  is  a  social 
being,  rights  which  are  of  primordial  importance,  and  which 
present  themselves  the  more  distinctly  to  the  human  mind 
and  are  acted  out  the  more  definitely  in  reality,  the  more 
mankind  advance  in  civilization.  It  is  on  this  account  that  the 
word  primordial  has  been  preferred  to  indelible,  indefeasible,  or 
inherent  rights  ;  for  they  are  in  periods  of  political  transition 
obliterated,  nor  can  they  often  be  otherwise,  and,  what  is 
more  important,  these  latter  names  convey  the  idea  that  they 
were  originally  distinctly  acknowledged,  which  is  not  the 
case.  Imprescriptible  is  a  better  term  ;  they  might  be  called 
essential  rights,  if  essential  were  understood  to  mean  that 
they  belong  to  the  essence  of  the  individual.  They  all  flow 
from  the  great  end  of  all  political  union,  protection,  which,  of 
course,  likewise  presents  itself  with  greater  distinctness  the 
more  man  advances  in  his  civil  progress.  The  state  never 
ceases  to  protect ;  even  the  blackest  criminal,  the  moment 
before  his  head  falls,  is  yet  protected.  It  was  a  most  fal- 
lacious argument  from  the  lex  talionis,  that  "  frustra  legis 
auxilium  invocat  qui  in  legem  committit,"  or,  as  St.  John  said 

I  [.A.  right  may  be  inalienable  although  I  am  deprived  of  it  and  unwilling  or 
unable  to  take  measures  for  its  recovery.  I  may  waive  a  right  in  a  imrticular 
case,  as  the  right  to  property,  yet  property  may  be  an  inalienable  right.  I  may 
waive  even  the  right  to  live,  yet  no  one  may  take  it  away  without  my  consent.] 


THE  PUNITORY  RIGHT. 


203 


before  the  lords,  when  he  brought  the  bill  of  attainder  against 
Earl  Strafford  (April  29,  1641),  "  He  that  would  not  have  had 
others  to  have  a  law,  why  should  he  have  any  himself?  Why 
should  not  that  be  done  to  him  that  himself  would  have  done 
to  others  ?"  ^  Even  some  modern  writers  have  erroneously 
endeavored  to  derive  the  punitory  right  of  the  state  from  the 
fact  that  the  offender,  by  doing  wrong,  declares  himself  out 
of  the  jural  society.  (See,  for  instance,  Fichte,  Natural  Law, 
vol.  ii.  p.  95,  et  seq.,  in  German.)  Nothing  can  be  more  un- 
tenable in  all  its  bearings.  On  the  contrary,  the  state  being 
essentially  a  jural  society  cannot  possibly  act  except  by  law 
and  upon  jural  relations;  and,  in  as  far  as  the  right  of  an 
individual  is  the  condition  of  his  union  with  other  rational 
individuals,  punishment  is  the  right  of  the  offender,  however 
paradoxical  this  may  sound  at  first,  because  we  are  accus- 
tomed to  imagine  under  right  some  specific  privileges.  State 
punishment  is  likewise  the  protection  of  the  offender,  who 
without  it  would  be  exposed  to  all,  even  the  most  extrava- 
gant, modes  of  private  redress.  No  offender  would  hesitate 
to  acknowledge  and  claim  state  punishment  as  his  right,  if 
choice  were  left  him  between  the  state  punishment,  which, 


'  State  Trials,  vol.  iii.  p.  159,  taken  from  8  Rushworth,  675.  Though  I  blame 
the  argument,  I  do  not  wish  to  be  misunderstood  as  to  the  trial  and  sentence  of 
Strafford.  He  deserved  his  fate.  That  we  are  now  so  happy  as  to  be  able  to 
suffer  ministers  to  live  who  conspire  against  the  fundamental  law,  is  no  proof  that 
it  could  then  be  done.  Nor  does  the  case  of  the  ministers  of  Charles  X.  of 
France  sufficiently  prove  that  it  can  always  be  done;  but  it  is  a  proof — and  civ- 
ilized mankind  may  congratulate  itself  upon  it,  as  one  of  the  happiest  events  in 
the  nineteenth  century — that  to  grant  them  life  is  infinitely  preferable  in  every 
way,  if  at  all  possible.  The  difficult  case  to  which  I  allude  takes  place  when 
the  minister  has  a  large,  powerful  faction  attached  to  him  personally,  especially 
when  he  is  a  military  leader  of  consummate  talent  and  civil  war  must  be  the 
consequence  of  mercy  towards  him.  The  difference  between  Strafford  and  Po- 
lignac  was  also  this,  that  the  former  was  a  man  not  only  of  the  highest  talent, 
but  of  the  highest  mental  energy — a  man  than  whom  no  one  could  be  imagined 
more  fitted  to  be  the  defender  of  absolutism;  there  was  much  that  was  great  in 
Strafford.  Polignac  was  considered  daring  on  account  of  his  folly  only.  Not 
one  royalist  looks  up  to  him  at  present.  Strafford,  if  set  free,  could  not  but  be 
drawn  by  circumstances,  even  if  it  had  been  against  his  will,  into  the  highest 
spheres  of  momentous  action;  if  imprisoned,  all  knew  he  would  soon  be  freed. 


204 


THE  STATE. 


because  it  is  state  punishment,  requires  formal  trial,  on  the 
one  hand,  and,  on  the  other  hand,  those  summary  proceed- 
ings against  criminals  caught  in  flagrante  delicto,  which  we 
find  in  perhaps  all  early  codes,  and  sometimes  acknowledged 
to  a  very  late  period  (Blackstone,  iv.  308),  or  to  which  an  ex- 
cited people  sometimes  return  when  the  regular  trial  appears 
too  slow  for  their  inflamed  passions,  as  has  been  the  case  in 
those  riotous  and  illegal  inflictions  of  death  or  other  punish- 
ment, so  unfortunately  called  Lynch  law,  in  our  own  country. 
I  say,  unfortunately  called  Lynch  law,  for  it  is  ever  to  be  de- 
plored if  any  illegal  procedure  receives  a  regular  and  separate 
name  of  its  own.  By  this  very  application  of  a  technical  term 
it  assumes  an  air  of  systematized  authority,  which  has  an 
astonishing  effect  upon  the  multitude,  and  in  fact  upon  most 
men.  Give  a  separate  and  technically  sounding  name  to  a 
thing,  and  you  take  from  it  much  of  its  harshness  for  the 
human  ear.  Many  a  member  of  trades'-unions  in  Scotland 
would  not  have  been  willing  to  commit  outrages  upon  the 
person  of  his  neighbors,  or  even  murder,  had  it  not  been 
called  slating,  or  by  some  other  technical  term.  The  same 
principle  applies  to  errors  in  science,  religion,  the  arts.  (See 
also  Blount's  Law  Dictionary,  tit.  Lidford  Law,  and  Blount, 
Fragm.  Antiq.,  ed.  of  1734,  p.  327.) 

The  state  does  not  act  as  a  state  the  moment  it  ceases  to 
protect,  that  is,  to  act  on  jural  relations.  We  see.  then  like- 
wise how  void  of  meaning  such  phrases  as  **  the  offended 
state,"  "the  vyrath  of  the  state"  ("of  a  king"),  are.  By  what 
organ,  in  what  possible  manner,  shall  the  state  feel  offended  ? 
Individuals  may  feel  offended,  for  the  feeling  of  offence  is 
personal.  A  king  may  be  wrathful ;  so  much  the  worse  for 
him;  he  is  not  so  as  king,  but  as  a  private  person  ;  the  crown 
cannot  be  angry ;  and  all  that  men  have  been  obliged  to  hear 
about  offended  majesty  and  the  terribleness  of  a  king's  wrath 
has  arisen  out  of  the  unfortunate  confusion  of  state  and 
family,  the  crown  and  the  individual  who  wears  it;  or  it  was 
urged  in  order  to  cover  acts  of  hatred  and  personal  revenge 
of  the  monarch  or  some  officer  with  the  garb  of  official  re- 


STATE  EXEMPT  FROM  PASSION.  205 

venge.  Abject  flatterers  have  not  been  wanting  who  openly- 
pronounced  or  alluded  to  a  similarity  between  the  Deity  and 
the  monarch  in  these  acts  of  dreadful  indiscriminate  revenge, 
while  the  slavish  flatterers  or  hypocritical  deluders  of  the 
people,  in  their  turn,  pleased  the  revengeful  passion  of  the 
multitude  and  goaded  it  on  to  still  greater  excesses  by  telling 
them  about  the  grandeur  of  a  nation's  revenge,  not  unfre- 
quently  seeking  in  the  veiy  vastness  of  the  slaughter  an 
element  of  grandeur  which  ennobled  the  revenge.  When  the 
devastating  armies  of  the  Convention  were  sent  out  against 
the  doomed  cities  of  Lyons,  Nantes,  Bordeaux,  and  Toulon, 
when  but  one  problem  seemed  to  occupy  the  many  leaders 
and  commanders,  that  of  slaughtering  the  greatest  number  in 
the  shortest  time  in  the  most  savage  manner,  the  people  were 
told  that  a  nation's  revenge  was  like  the  thunders  of  nature 
— terrible  and  indiscriminate.  Not  a  day  passed  that  long 
speeches  on  the  revenge  of  the  people  were  not  delivered  in 
the  Convention ;  and  what  is  ever  more  gratifying  to  a  heart 
maddened  with  passion  than  a  justification,  a  reason,  nay,  a 
mere  simile,  that  affords  some  plausible  excuse  for  revenge  ? 
The  state  has  nothing  whatsoever  to  do  with  wrath,  though 
the  organs  of  the  state  may  be  wrathful ;  wrath  and  revenge, 
whether  in  reference  to  monarchs  or  nations,  are  political  ab- 
surdities, and  every  political  absurdity  is  a  cruelty  in  practice. 
It  was  a  saying  of  the  deepest  import,  when  Charles  V.  was 
asked  how  it  happened  that  at  times  he  would  show  himself 
vexed  at  trifles  but  never  at  things  of  magnitude,  and  he  an- 
swered, "The  person  of  kings  may  feel  annoyed,  not  their 
office"  (la  persona  de  los  reyes  se  puede  enojar,  no  el  oficio. 
Perez,  Relaciones,  554).  It  applies  equally  to  the  people. 
They  may  be  impassioned,  they  may  be  agitated  by  revenge 
like  a  roaring  sea,  but  do  not  deceive  thyself,  whatever  is 
done  for  revenge  remains  the  act  of  each  individual  as  such, 
and  no  vote  of  a  political  body  changes  the  matter,  for  the 
state  knoweth  not  revenge ;  it  cannot  know  it.' 


•  *  "  Crimes  are  the  acts  of  individuals,  and  not  of  denominations;  and  there- 


2o6  THE  STATE. 

LVII.  Rights,  it  has  been  stated,  can  only  exist  between 
men;  animals  have  no  rights.  Man,  as  we  have  seen  in  the  first 
book,  differs  essentially  from  the  animal ;  and  a  being  which 
unites  those  essential  qualities  enumerated  there  is  called  man. 
As  a  practical  rule,  I  believe  it  may  be  stated  that  those  beings 
who,  in  a  sound  state  of  body,  speak  or  exchange,  are  men,  com- 
munion and  exchange  of  labor  being  the  two  most  common 
manifestations  of  reason.  As  soon,  then,  as  we  see  one  of  these 
marks,  we  are  bound  to  acknowledge  certain  rights  in  the  sub- 
ject. Be  the  individual  ever  so  low,  or  the  race  to  which  he 
belongs  ever  so  far  removed  in  capacity  from  ours,  we  have  no 
right  to  kill  him,  for  instance,  like  an  animal,  simply  for  our 
information  or  gratification.  So  sacred  are  the  rights  inherent 
in  humanity  that  we  acknowledge  them  though  the  distin- 
guishing marks  from  which  they  first  were  derived  have 
vanished ;  we  esteem  man  even  when  nothing  but  outward 
form  remains.  An  idiot,  in  intellect  far  below  some  animals, 
cannot  be  killed  at  convenience,  and  though  he  may  suffer 
night  and  day,  though  the  beholder  may  pray  that  his  life 
may  be  taken  away,  we  dare  not  do  with  him  that  in  which 
several  savage  tribes  consider  themselves  justified  merely  on 
account  of  the  advanced  age  of  a  parent. 

It  is  not  here  the  place  to  investigate  how  far  absolute  ne- 
cessity of  physical  self-preservation  may  justify  one  man  in 
disregarding  all  the  rights  of  humanity  in  another — for  in- 
stance, when  shipwrecked  people  sacrifice  by  lot  one  from 
among  them  to  give  sustenance  to  the  others.  The  positive 
law  cannot  reach  these  cases ;  but  who  is  there  that  lately 
perused  the  accounts  of  the  several  suffering  parties  into 
which  the  merciless  element  had  divided  the  few  survivors  of 


fore  arbitrarily  to  class  men  under  general  descriptions,  in  order  to  proscribe  and 
punish  them  in  the  lump  for  a  presumed  delinquency,  of  which  perhaps  but  a 
part,  perhaps  none  at  all,  are  guilty,  is  indeed  a  compendious  method,  and  saves 
a  world  of  trouble  about  proof;  but  such  a  method,  instead  of  being  law,  is  an 
act  of  unnatural  rebellion  against  the  legal  dominion  of  reason  and  justice;  and 
this  vice,  in  any  constitution  that  entertains  it,  at  one  time  or  other  will  certainly 
bring  on  its  ruin."    Burke,  Speech  at  Bristol  in  1780,  Works,  Bohn's  ed.,  ii.  164. 


VARIOUS  RACES   OF  MAN. 


207 


the  many  people  on  board  the  steamboat  Pulaski,  that  did  not 
rejoice  at  I\Ir.  Heath's  manful  opposition  to  the  proposal  of 
casting  lots  that  one  might  be  slaughtered  for  the  rest  ?  Who 
has  read  without  moral  loathing  the  account  of  the  half-breed 
Indian,  one  of  the  companions  of  Captain  Franklin  on  one  of 
his  polar  expeditions,  who  was  strongly  suspected  of  having 
shot  a  member  of  the  party  in  order  to  obtain  food  for  some 
days  ?  The  law  justly  considers  life  as  the  first  and  most 
precious  right ;  but  is  death,  after  all,  so  horrid  ?  Is  it  not 
better  to  die  than  to  feed  on  our  own  species  ? 

LVIII,  Yet,  though  the  distinction  between  man  and  brute 
has  thus  been  distinctly  drawn,  comparative  anatomy  and  phy- 
siology are  establishing  daily  more  clearly  the  fact  that  all 
those  beings  comprehended  under  the  vast  term  of  the  human 
species  are  not  only  morally  or  individually  distinguished  from 
each  other,  but  in  a  very  marked  way  physiologically,  and 
as  to  their  capacities,  by  whole  races,  thus  forming  a  gradual 
scale  of  superiority.  The  most  peculiar  skulls  of  the  so-called 
Pre-Inca  race,  found  in  South  America,  are  so  entirely  dif- 
ferent from  ours  that  they  alone  show  an  essential  difference 
of  that  race  from  ours.  The  Caffirs,  the  Bushmen,  the  Hot- 
tentots, and  the  poor  Papuans,  for  instance,  differ  so  materially 
in  their  anatomy  and  physiologic  organization  from  the  races 
which  comparative  anatomy  as  well  as  the  history  of  civilization 
teaches  us,  by  conclusive  facts,  to  consider  as  superior,  that  we 
should  abandon  all  truth  were  we  to  deny  the  difference. 
There  is  probably  no  reflecting  man  who  was  not  painfully 
startled  when  he  became  first  acquainted  with  these  neverthe- 
less imperative  truths.  We  love  to  treat,  in  our  theories  and 
meditations,  all  men  as  absolutely  equal ;  but  truth  is  truth, 
however  it  may  militate  with  beloved,  nay,  generous  theories; 
and  God  is  the  God  of  truth.  He  must  have  had  his  all-wise 
ends  in  creating  these  different  races,  as  he  must  have  had  his 
ends  in  creating  those  many  tribes  and  races  who  without 
light,  without  expansion  of  thought,  or  cultivation,  have  in- 
creased and  vanished,  or  who  continue  to  people  so  many 


2o8  THE  STATE. 

parts  of  the  globe,  yet  do  no  more  than  people  them,  tribes 
which  live  without  history,  that  is,  without  progressive 
change,  interesting  to  the  naturalist,  but  of  no  account  in 
the  history  of  mankind.  Nor  is  it  for  us  here  to  speculate 
how  far  these  tribes,  now  so  low  and  brutish,  may  be  suscep- 
tible of  organic  improvement,  which,  it  cannot  be  denied,  has 
taken  place  with  some  races.  The  negro  of  Virginia  is  su- 
perior, as  to  the  formation  of  his  head,  to  the  negro  of  the 
more  southern  states,  because  he  descends  from  earlier-im- 
ported generations.  The  negro  of  the  most  southern  of  the 
United  States,  again,  has  much  more  expression  of  intelli- 
gence than  the  newly-imported  negro  in  the  West  Indies.  So 
has  civilization  improved  the  formation  of  the  head  in  the 
Celtic  race. 

Man,  as  to  his  existence  on  this  globe,  may  be  considered 
in  the  following  points  of  view:  physically  and  individually; 
in  this  respect  he  forms  a  link  in  the  great  and  endless  chain 
of  distributed  matter,  and  has  his  meaning,  as  the  animal,  the 
plant,  the  mineral,  has  in  God's  vast  creation.  He  may  be 
considered  individually,  morally,  and  intellectually;  in  this 
respect  he  is  above  all  other  creatures,  and  an  immortal 
being.  Finally,  we  may  consider  man  socially;  in  this  respect 
he  Vias  his  meaning  as  a  member  of  a  society  which  passes 
from  one  stage  to  another,  which  establishes  institutions 
gradually  developing  themselves,  and  which  by  the  amount 
of  its  civilization  contributes  a  share  to  the  general,  gradual, 
and  continuous  development  of  the  favored  races — the  history 
of  the  civilization  of  mankind. 

Whatever  may  be  the  result  of  reflection,  when  we  consider 
those  lower  races  of  the  human  species  under  these  various 
points  of  view,  this  remains  certain  : 

When  we  pronounce  the  name  of  man,  we  pronounce  the 
belief  of  immortality; 

When  we  call  a  being  man,  we  attribute  a  separate  moral 
value  of  his  own  to  him,  and  cannot  any  longer  use  him 
merely  for  our  benefit,  as  we  use  the  animal.  We  attribute 
rights  to  him. 


RIGHTS  OF  MAN.  20Q 

How  far  the  primordial  rights  ascertained  in  preceding- 
passages  may  practically  expand  with  each  race,  no  human 
mind  can  say;  but  they  are  the  rights  towards  a  greater  and 
fuller  acknowledgment  of  which  each  step  in  the  progress  of 
civilization  infallibly  tends,  and  therefore  belong  to  the  very 
nature  of  man. 


u 


CHAPTER    VI. 

The  State  necessarily  comprises  all. — No  one  can  declare  himself  out  of  it;  no 
one  can  be  considered  out  of  it. — Different  Meanings  attached  to  the  word 
State  at  different  Periods. — Mankind  divided  into  many  States. — Wiry  ? — Sov- 
ereignty.— Definition. — There  were  never  individual  Sovereigns  before  the 
Formation  of  the  State. — Who  is  the  Sovereign  ? — Manifestations  of  Sover- 
eignty.— Public  Opinion,  Generation  of  Law,  Power. — Public  Opinion. — Law  : 
what  does  it  consist  of? — Public  Will. — Nature,  Common  Sense,  Custom  and 
Usage,  Common  Law,  Charters,  Codes  and  Statute  Law,  Decisions,  Prece- 
dents, Interpretation,  Authentic  Interpretation,  Digests. — Judge-made  Law,  so 
called. — Power  rests  with  Society,  cannot  rest  anywhere  else. — Government, 
what  it  is. — Various  Kinds  of  Governments  as  to  their  Origin. — Always  rest  on 
Opinion. — Importance  of  distinguishing  State,  Government,  Sovereignty,  Su- 
preme Power. —  Divine  Right. — Monarchs  called  of  God.  —  Frederic's  and 
Joseph's  View. — No  Monarch  ever  was  or  can  be  Sovereign  in  the  true  Sense. 
— Meaning  of  the  Word  Sovereign  if  used  of  the  British  Monarch. — Declara- 
tion of  Rights. — True  Relation  of  Monarch  and  People. — Can  the  King  really 
do  no  Wrong,  constitutionally  or  legally  ? — He  can  do  so,  and  it  has  been 
decided  that  he  can. — British  Monarch  the  Fountain  of  Honor. — Its  Meaning. 
— Different  Title  of  Monarchs;  some  of  the  Land,  some  of  the  People. 

LIX.  All  actions  of  man,  and  all  the  relations  in  which  he 
stands  to  other  men  or  to  things,  may  be  disturbed,  and  all 
his  actions  and  relations  must  be  consentaneous  to  the  funda- 
mental principle  that  he  is  directed  by  his  nature  to  live  in 
society,  and  to  obtain  in  and  through  society  his  highest  ob- 
ject, namely,  that  of  being  fully  man.  Hence  it  is  that  the 
state,  which  has  been  found  to  be  the  society,  founded  upon 
the  relations  of  right,  and  which  has  to  protect  them  in  the 
highest  sense  of  the  term,  extends  to  all  members  of  that 
society,  and  to  all  their  relations  in  as  far  as  they  manifest 
themselves  outwardly,  that  is,  by  actions.  The  state  must 
maintain  right ;  it  must  repress  interference  with  right,  and 
must  help  every  one  to  his  right,  which  includes,  as  has  been 
indicated  several  times,  that  it  must  assist  me  in  obtaining 
that,  by  and  in  society,  which  is  necessary  for  me  physically 


MEANING    OF   THE    TERM.  211 

and  intellectually,  and  which  I  cannot  obtain  individually. 
No  man,  therefore,  has  a  right  to  declare  himself  out  of  the 
state,  and  no  circumstance  can  sever  him  from  the  state,  so 
long  as  he  is  man,  that  is,  lives,  because  he  has  always,  by 
the  mere  fact  that  he  is  a  human  being,  rights,  the  infringe- 
ment of  which  the  state  must  repel.  Passive  members,  e.g. 
children,  are  still  members  of  the  state,  and  demand  its  ac- 
tion. On  the  one  hand,  therefore,  the  Jacobites  were  as  much 
members  of  the  state,  and  England  had  as  much  right  to 
make  them  amenable  to  the  laws  of  the  land,  as  if  they  had 
taken  the  oath  of  allegiance;  on  the  other,  paupers  and  idiots, 
aliens  and  travellers,  are  as  much  within  the  sphere  of  the 
political  action  of  society  as  the  richest  and  wisest,  or  as  the 
members  of  long-settled  families. 

The  word  state  has  had  very  different  meanings,  ever  since 
it  has  been  used ;  that  is,  people  have  taken  different  views 
of  the  subject  at  different  periods,  as  of  every  important 
one ;  and  the  idea  of  the  state  follows  the  general  law  of 
ideas,  namely,  that  they  are  mere  clearly  developed  and  pre- 
sent themselves  with  their  more  distinct  and  essential  char- 
acteristics only  in  the  course  of  time,  being  subject  likewise 
to  unfav^orable  influences  and  consequent  retrograde  move- 
ments. I  shall  hereafter  speak  farther  of  the  view  which 
the  Greeks  took  of  the  state ;  the  Romans  formed  originally 
a  conquering  city.  At  a  later  period,  the  emperor  had  all 
the  power  over  very  incongruous  parts  of  the  empire.  Yet 
even  then  the  idea  was  distinctly  recognized  that  the  emperor 
was  placed  on  the  throne  to  do  justice ;  that  men  were  con- 
gregated for  some  mutual  benefit.  Previous  quotations  prove 
it.  The  emperor  of  Germany  swore  at  his  coronation  to  pro- 
tect the  widows  and  orphans,  and  have  justice  administered 
to  all. 

"Formerly,"  says  Hallam  (note  to  page  51,  vol.  i.  Constitu- 
tional History  of  England),  "  the  king  had  taken  an  oath  to 
preserve  the  liberties  of  the  realm,  and  especially  those  granted 
by  Edward  the  Confessor,  etc.,  before  the  people  were  asked 
whether  they  would  consent  to  have  him  as  their  king.     See 


212  THE  STATE. 

the  form  observed  at  Richard  the  Second's  coronation,  in 
Rymer,  vii.  158.  But  at  Edward's  coronation  the  archbishop 
presented  the  king  to  the  people  as  rightful  and  undoubted 
inheritor  by  the  laws  of  God  and  man  to  the  royal  dignity 
and  crown  imperial  of  this  realm,  etc.,  and  asked  if  they  would 
serve  him  and  assent  to  his  coronation,  as  by  their  duty  of 
allegiance  they  were  bound  to  do.  All  this  was  before  the 
oath.  (Burnet,  History  of  the  Reformation,  ii.,  App.,  p.  93.) 
Few  will  pretend  that  the  coronation,  or  coronation  oath, 
was  essential  to  the  legal  succession  of  the  crown  or  the 
exercise  of  its  prerogatives.  But  this  alteration  in  the  form 
is  a  curious  proof  of  the  solicitude  displayed  by  the  Tudors, 
as  it  was  much  more  by  the  next  family,  to  suppress  every 
recollection  that  could  make  their  sovereignty  appear  to 
be  of  popular  origin."  Hallam  gives  credit  to  Lingard  for 
having  remarked  this  important  change  in  the  coronation 
ceremony. 

At  the  late  coronation  of  Queen  Victoria,  the  archbishop 
of  Canterbury  pronounced  these  words,  while  the  queen  re- 
mained standing  and  turned  towards  the  people  on  the  side 
at  which  the  recognition  was  made  :  "  Sirs,  I  here  present 
unto  you  Queen  Victoria,  the  undoubted  queen  of  this  realm; 
wherefore,  all  you  who  are  come  this  day  to  do  your  homage, 
are  you  willing  to  do  the  same  ?" 

LX.  In  the  worst  feudal  times  the  idea  of  the  state  was 
probably  more  obscured  than  long  before  or  ever  after.  Actual 
force  ruled  in  many  parts  of  Europe.  But  even  then  the  in- 
dividual feuds  were  considered  as  unhappy  anomalies.  Rob- 
bers may  do  many  bold  acts,  and  unhappy  is  the  state  of 
things  where  they  may  do  them  with  impunity.  Duke  Warner 
wore  a  legend  worked  in  silver  on  his  surcoat,  "  I  am  Duke 
Warner,  the  chief  of  the  Great  Company,  the  enemy  of  God, 
of  piety  and  mercy."  (Life  of  Joanna  of  Sicily,  vol.  ii.  p.  2.) 
Melancholy  is  the  age  or  country,  indeed,  where  this  can 
even  be  dared,  where  this  is  suffered  even  among  the  banditti; 
but  the  idea  had  never  been  given   up  that  rulers  became 


IiY  FEUDAL    TIMES. 


213 


such  in  order  to  maintain  justice  and  to  protect  the  church.' 
Even  in  the  worst  and  most  heartless  periods  of  French  poli- 
tics, when  an  indefinite  idea  with  regard  to  the  state  seemed 
to  be  floating  about,  sometimes,  as  is  common  to  this  day, 
confounding  it  with  the  government;  sometimes  imagining  it 
as  something  built  upon  the  people,  who  thus  are  believed  to 
form  the  substratum  of  the  state,  and  were  consequently  com- 
pared by  Richelieu  to  mules  ;^  sometimes  as  if  it  were  concen- 
trated in  the  monarch,  who  thus  had  a  right  to,  and  was  the 
rightful  owner  of,  all  property,  church  and  lay  ;3  or  as  if  the 
govef'nment,  considered  in  its  consecutiveness  from  age  to 
age,  were  an  instrument  in  the  hands  of  the  royal  house  or 
consecutive  family ; — even  then  the  obedience  of  the  people 
was  always  claimed,  either  on  the  ground  of  general  benefit 
that  without  it  everything  would  dissolve  into  anarchy,  or  on 
the  ground  of  divine  law,  that  is,  the  divine  order  of  things, 
and  of  course  the  divinity  could  not  be  imagined  as  having 
created  millions  for  the  benefit  of  a  few  or  one;  nor  was  it  so 


'  *  At  times,  again,  the  word  state  was  used  to  designate  neither  the  actual 
government,  nor  the  king,  nor  the  nation,  but  rather  what  we  now  would  term 
the  organic  institutions  of  the  state,  the  primary  organism  of  the  state.  Thus, 
president  Jeannin  of  the  parliament  of  Paris  said  at  the  states-general  of  I593j 
when  the  question  whether  the  "  sovereign  courts"  should  be  admitted  to  the 
assembled  three  estates,  in  order  to  elect  a  king  of  France,  after  Henry  III.  had 
been  murdered,  "  Since  these  high  authorities  (the  parliaments)  have  thus  formed 
ever  a  part  of  the  state,"  etc.  See  Raumer,  Hist.  Sixteenth  and  Seventeenth 
Cent.,  illustrated  by  Original  Documents,  translated  from  the  German,  2  vols., 
Lond.,  1835,  vol.  i.  p.  304. 

^  In  Richelieu's  Political  Testament  addressed  to  King  Louis  XIII.,  chap.  iv. 
sect.  5>  lie  says,  "The  people  may  be  compared  to  mules,  which,  being  accus- 
tomed to  the  load,  are  more  spoiled  by  a  long  rest  than  by  work  ;  but  as  this  work 
ought  to  be  moderate,  and  as  the  load  of  these  animals  ought  to  be  proportionate  to 
their  strength,  it  is  the  same  with  regard  to  the  subsidies  to  be  paid  by  the  people. 
If  they  are  not  moderate,  even  if  they  were  useful  to  the  public,  they  would  be 
nevertheless  unjust."  Considering  those  times,  when  the  term  politics  meant  a 
system  of  wisdom  and  experience  to  manage  the  affairs  of  the  king,  and  when 
'■^  la  gloire  de  S.  MP  was  often  used  as  designating  the  great  and  main  object  of 
the  state,  precisely  as  now  frequently  the  success  of  the  party  is  substituted  for 
the  "  welfare  of  the  people,"  these  words  of  Richelieu's  appear  quite  moderate. 

3  See  the  Testament  of  Louis  XIV. 


214  "^^^  STATE. 

considered,  however  contrary  the  actions  of  the  rulers  fre- 
quently were.  When  the  same  Louis  XIV.  who  had  said,  "I 
am  the  state,"  was  at  the  point  of  death,  he  said,  "  Je  m'en 
vais,  mais  I'Etat  demeurera  toujours."  (I  depart,  but  the 
state  will  endure  forever.)  He  acknowledged  he  was  not  the 
state,  but,  at  the  highest,  its  representative,  for  otherwise  the 
state  must  have  departed  with  him.  Thus,  when  the  king  of 
France  died,  it  was  customary  to  proclaim  the  death  by  the 
words,  "The  king  is  dead,  long  live  the  king."  And  what 
■was  this  "state"  which  would  endure  forever  ?  Did  the  court 
form  the  state,  or  the  nobles,  or  the  employes,  the  navy  or 
army,  the  judicial  courts?  The  people  have  always  instinct- 
ively discerned,  sometimes  in  spite  of  the  professed  doctrines, 
between  the  monarch  with  his  government,  and  the  country, 
i.e.  the  state.  There  was  never  yet  a  Frenchman,  plebeian  or 
courtier,  for  whom  the  words  la  France,  though  politically 
considered,  had  not  a  very  different  sound  from  that  of  the 
word  nionarqiie  or  roy.  The  state  is  what  the  ancients  fitly 
called  res  pitblica,  and  defined  by  being  res  coimminis,  res  popidi. 

LXI.  Mankind  extends  over  so  vast  a  space,  the  various 
countries  have  characters  so  different,  the  several  portions  of 
mankind  stand  in  so  different  degrees  of  civilization,  their 
Avants,  physical  and  intellectual,  their  taste  and  genius  pro- 
moted or  retarded  by  circumstances  and  events  uncontrollable 
by  them,  the  objects  they  strive  for  by  joint  exertions,  their 
dangers,  desires,  interests  and  views,  languages  and  religions, 
capacities  and  means,  are  of  such  infinite  variety — that  human 
society  does  not,  and,  according  to  the  order  of  things,  ought 
not  to,  form  one  state.  There  exist  many  states ;  that  is,  man- 
kind is  divided,  in  consequence  of  countless  concurring  cir- 
cumstances, into  a  number  of  societies,  in  each  of  which  exists 
the  absolute  necessity  of  forming  a  state— a  necessity  without 
which  man  cannot  rise  higher — a  necessity  which  is  felt  by  all 
at  all  times,  however  different  the  view  that  people  take  of  the 
state,  or  though  the  state  may  not  even  yet  have  developed 
itself  in  their  minds  as  a  separate  idea,  distinct  from  all  other 


DIVISION  OF  MANKIND  INTO  STATES.  215 

societies.  Men  cannot  exist  without  the  state ;  men  never 
have  existed  without  the  state  ;  for  everywhere  we  find  rights 
acknowledged,  laws  and  rules  observed,  authorities  estab- 
lished. The  idea  of  law  itself  need  not  have  presented  itself 
very  distinctly  to  the  mind ;  it  may  yet  be  in  a  great  measure 
bound  up  with  the  personality  of  the  authority,  whom  all 
obey,  who  commands  and  gives  the  rules ;  yet  even  then  the 
state  exists  in  its  incipient  stage,  because  a  law  —  although 
not  of  necessity  a  written  one — which  the  others  obey,  gives 
him  who  is  the  superior,  power  or  authority  to  prescribe  rules 
and  settle  differences.  So  have  men  never  lived  without  the 
administration  of  justice  ;  they  cannot  by  any  possibility.  Yet 
there  is  avast  difference  between  the  first  summary  procedure 
of  a  patriarch,  and  the  elaborate,  well-poised  trial  of  a  highly 
civilized  community.  Though  man  has  never  existed  without 
some  at  least  incipient  manifestations  of  the  love  of  the  beau- 
tiful, still  there  is  a  great  difference  between  the  tattooing  of 
the  savage  or  his  first  uncouth  idols,  and  the  perfect  beauty 
and  simplicity  of  the  Grecian  Aphrodite.  Does  this  difference 
justify  us  in  asserting  that  the  love  of  the  beautiful  is  not 
natural  in  man  but  acquired,  that  there  is  no  original  aesthetic 
disposition  in  him  ?  If  so,  why  does  taste,  rude,  correct,  or 
perverted,  pervade  all  mankind  and  form  one  of  the  main- 
springs of  all  industry  ?  Men,  be  it  repeated,  are  nowhere 
without  the  state,  and  this  is  one  of  their  distinctions  from 
the  brute.  Brutes  nowhere  acknowledge  a  superior  or  leader. 
If  they  follow  greater  force,  or  if  many  females  follow  one 
male,  it  is  the  yielding  to  physical  power  or  the  operation  of 
physical  laws,  not  the  acknowledgment  of  superiority.  It  is 
the  high  distinction  of  man  to  acknowledge  authority. 

Wherever  we  find  men,  in  whatever  stage  of  social  devel- 
opment, the  barbarous  Patagonian,  the  restless  son  of  the 
desert,  the  moving  hunter  of  the  prairie,  the  piratical  Malay, 
the  forlorn  Esquimaux,  the  slavish  Asiatic  or  the  free  Amer- 
ican, the  submissive  Russian  or  the  manly  Briton,  where 
there  are  men,  there  are  also  rules,  rulers  and  ruled,  ordainers 
and  obeyers,  judges  and  judged,  those  that  have  power  and 


2i6  THE  STATE. 

those  that  yield  obedience,  chieftain  and  followers,  princes 
and  subjects,  magistrates  and  citizens — alwaj^s  superiors  and 
inferiors.  The  state  is  natural  to  man,  is  absolutely  necessary 
to  man.  Each  state  carries  within  itself  the  absolute  neces- 
sity of  existence;  not  that  each  separate  state  must  necessarily 
exist  separately  for  itself,  but  that  the  people  who  constitute 
the  state  must  needs  live  in  a  state,  in  a  jural  society.  There 
is  an  absolute  necessity  of  man's  living  with  man  in  relations 
of  right,  of  rules  which  guide  his  actions,  of  power  to  enforce 
these  rules  when  not  willingly  obeyed,  or  of  deciding  where 
the  rights  of  various  individuals  clash  with  each  other — an 
absolute  necessity  of  man's  living  in  society  and  of  his  being 
protected  therein. 

And  this  absolute  necessity,  with  the  power  necessarily 
flowing  from  it  over  all  outward  relations,  we  call  sovereignty. 
The  right,  obligation,  and  power  which  human  society  or  the 
state  has  to  do  all  ■  that  is  necessary  for  the  existence  of  man 
in  society,  is  the  true  sovereign  power.  It  is  the  basis  of  all 
derived,  vested,  or  delegated  powers,  the  source  of  all  other 
political  authority — itself  without  any  source,  imprescriptible 
in  the  nature  of  man.  It  exists  by  absolute  necessity,  and 
draws  from  its  own  self-sufficient  plenitude.  Since  society, 
and  hence  the  state,  never  ceases,  and  since  with  them  their 
necessity  of  existence  never  ceases,  so  is  the  sovereign  power 
never  exhausted  or  extinct,  but  acts  in  all  cases  in  which 
the  derived  or  vested  powers,  the  powers  of  trust,  are  at  an 
end,  it  being  the  never-ceasing  fountain  and  the  last  resort 
of  all  power,  the  "summum  imperium,"  the  "summa  potestas 
nulli  subjecta."  The  true  definition  of  sovereignty,  therefore, 
would  be  that  it  is.  Prima  et  summa  civitatis  vis  et  potestas — 
vis,  because  of  its  being  the  primitive  energy  of  the  state  ; 
potestas,  because  of  its  being  the  ultimate  and  supreme,  chief 
and  ever-active  power.  It  has  been  seen  that  justice  in  its 
broadest  sense,  as  that  which  is  just,  is  the  foundation  of  the 
state,  and  its  vital  element;  and  thus  Milton  is  right  when  he 
says,  "Justice  is  the  only  true  sovereign  and  supreme  majesty 
upon  earth."     (Tenure  of  Kings  and  Magistrates,  vol.  ii.  p. 


SOVEREIGNTY. 


217 


IJ2  of  Milton's  Prose  Works,  Boston  ed.)  This  is  the  true 
divine  right  of  sovereignty.  "  Item  author  justitiae  est  deus, 
secundum  quod  justitia  est  in  creatore,"  (Bracton  de  Leg. 
et  Consuet.  Angl,,  lib.  i.  cap.  3.) 

LXII.  To  repeat  briefly  the  train  of  the  argument:  As 
axiom  I  stated,  Man  is  made  to  be  man,  or,  I  am  a  man, 
therefore  I  have  a  right  to  be  a  man.  Man  cannot  be  man 
without  society.  Society  cannot  exist  without  jural  relations 
between  its  members,  because  no  member  ought  to  give  up, 
or  can  give  up,  his  individuality.  Society,  considered  as  to 
its  jural  relations,  or  jural  society,  is  the  state.  The  neces- 
sary existence  of  the  state,  and  that  right  and  power  which 
necessarily  or  naturally  flow  from  it,  is  sovereignty.  Sover- 
eignty derives  its  power  from  no  previous  or  superior  one,  but 
is  the  source  of  all  vested  power. 

If  a  man  were  to  ask  in  earnest,  whence  does  this  power 
flow,  he  could  only  be  answered  by  a  counter-question,  such 
as,  whence  do  you  derive  the  right  of  breathing  ?  He  would 
answer,  "  my  existence  is  the  self-evident  proof  of  my  right 
of  existence;  and  in  order  to  exist,  breathing  is  absolutely 
necessary."  The  same  applies  to  sovereignty.  Absolute 
necessity  gives  in  all  cases  sovereign  power,  namely,  that 
primitive  power  which  supersedes  all  other,  as  it  is  its  source. 
The  crew  of  a  vessel  are  in  a  state  of  mutiny;  the  captain 
has  been  killed ;  an  energetic  man  among  the  passengers 
unites  the  latter  and  part  of  the  crew  with  himself;  he  seizes 
the  mutinous  sailors ;  there  is  no  possibility  of  subduing  or 
preventing  them  in  any  other  way  from  piratical  acts.  He 
tries  them  with  the  assistance  of  his  fellow-passengers,  and 
hangs  them.  He  is  right,  and,  provided  he  can  prove  every- 
thing as  stated  above,  he  will  be  justified  by  any  court  which 
decides  according  to  strict  justice  and  this  alone. 

The  French  vessel  La  Meduse  (Medusa)  went  in  18 16  to 
the  river  Gambia,  and  was  wrecked.  About  one  hundred  and 
fifty  of  the  crew  built  a  raft  and  suffered  incredibly.  They 
enacted  a  law  that  any  one  who,  unauthorized,  should  open 


2i8  THE  STATE. 

the  wine-casks,  which  were  of  infinite  importance  to  them, 
should  be  thrown  overboard.  Some  consequently  were 
thrown  into  the  sea,  having  opened  a  cask  in  the  night. 
They  likewise  passed  a  law  that  thirty  of  their  half-dead 
comrades  should  be  consigned  to  a  watery  grave,  because 
they  could  not  live  long  and  still  were  consumers  of  the  very 
small  stock  of  provisions,  which  but  barely  kept  the  stronger 
ones  from  starvation.  Without  this  law  the  remaining  ones 
would  have  lost  their  chance  of  living.'  Provided  the  people 
who  tried  and  executed  the  murderer  Patrick  O'Conner,  as 
related  in  the  Galenian  of  June  23,  1834 — a  paper  published 
at  Galena,  in  the  northwest  angle  of  the  state  of  Illinois — 
could  not  by  possibility  obtain  in  their  then  wilderness  the 
means  of  trying  this  dangerous  man,  who  had  for  a  long 
time  committed  crimes  against  them,  they  were  right  in  doing 
so  for  themselves.^  It  may  have  been  the  fault  of  the  state 
not  to  provide  that  part  of  its  territory  with  sufficient  means 
of  administering  justice;  I  only  speak  here  of  the  supposed 
necessity  under  which  the  people  labored,  and  the  consequent 
right. 

Equally  necessary  with  physical  existence  and  its  protec- 
tion is,  as  has  been  shown,  the  social  existence  of  man,  and 
consequently  its  insurance,  from  which  follows  sovereign 
power.  This  is  not  the  place  to  treat  of  the  great  danger  of 
resorting  to  this  sovereign  power,  implied  in  necessity,  in 
single  cases,  and  of  the  enormous  abuse  to  which  it  may  lead, 
if  wrongly  applied. 

LXIII.  It  appears,  then,  that  sovereignty  is  a  power  and 
energy  naturally  and  necessarily  inherent  in  society ;  it  only 


»  An  account  of  this  thrilling  transaction  may  be  found  in  the  London  Satur- 
day Magazine  of  April  12,  1834.  See  also  Captain  Ross's  Voyage  in  1829  to 
1833,  page  430,  American  edition,  with  regard  to  the  opinion  of  the  English 
]5ublic  res]  ecting  his  sick  men,  and  the  brave  captain's  indignation. 

'  This  very  peculiar  affair  was  reprinted,  among  other  papers,  in  the  National 
Gazette  (Philadelphia)  of  July  16,  1834,  which  will  be  more  accessible  to- many 
readers  than  the  Galena  paper. 


SOCIETY  ALONE  IS  SOVEREIGN.  219 

exists  with  society,  it  cannot  pass  from  it  It  is  the  vital 
principle  of  the  state,  and  any  one  can  no  more  live  for  an- 
other than  one  or  more  can  have  sovereignty  for  another. 
The  assertion  that  society,  or  the  people,  divest  themselves 
of  sovereignty  and  delegate  it  to  some  one  else,  is  as  contra- 
dictory in  itself,  and  can  be  as  little  imagined,  as  if  we  should 
force  our  mind  to  suppose  the  trees  of  a  forest  delegating 
one  tree  to  be  green  for  them,  or  to  sprout  in  spring  for  them 
— nay,  more  difficult,  because  sovereignty  and  state  are  ideas 
essentially  united,  one  being  only  the  attribute  of  the  other, 
as  omniscience  is  of  God.  Nor  is  it  any  more  correct  to  im- 
agine a  human  individual  at  some  period  or  other  a  sovereign 
for  himself  Mably  said,  "  Man  appears  to  me  only  to  be  a 
dethroned  king."  (Des  Droits  et  des  Devoirs  du  Citoyen, 
p.  12.)  Strange  kings  (that  is,  holders  of  supreme  power), 
without  kingdoms  (that  is,  with  power  over  nothing).  Man 
imagined  without  the  state  is  merely  an  individual  man;  but 
sovereignty  is  the  inherent  attribute  of  society.  Had  people 
always  traced  out  the  true  nature  of  the  state,  and  acknowl- 
edged that  this  alone  is  the  state  of  nature  for  men,  they 
would  not  have  fallen  on  the  one  hand  into  the  grave  error 
of  imagining  each  man  "before  the  state  was  formed"  as 
stalking  about  with  an  imperial  crown  on  his  head,  and  a 
sceptre  for  his  walking-stick  ;  on  the  other,  that  men,  forming 
a  joint-stock  sovereignty  company,  could  delegate  this  sov- 
ereignty to  any  one  whomsoever.     Of  this  more  hereafter. 

Society  never  can  delegate  or  pledge  away  sovereignty, 
and,  of  course,  never  has  done  so.  It  is  clear,  from  what  has 
been  stated  before,  and  it  will  be  shown  by  histor.cal  evidence 
in  the  sequel  of  the  work. 

He  in  whom  rests  sovereignty  is  called  the  sovereign. 
Who  is  it  ?  Who  else  can  it  be  but  society  ?  Not,  I  repeat 
it,  by  a  union  of  millions  of  little  sovereignties ;  nor  is  each 
member  of  the  state  possessed  of  a  fragment  of  sovereignty. 
Sovereignty  has  nothing  whatsoever  to  do  with  the  individual. 
Notions  which  are  radically  wrong  never  show  their  unten- 
ableness  in  so  glaring  a  light  as  when  reduced  to  plain  reality. 


220  THE  STATE. 

There  are  about  fourteen  millions  of  people  in  the  United 
States,  of  whom  perhaps  three  millions  are  grown  white  male 
citizens.  If  the  people  are  the  sovereign  by  a  union — a  con- 
glomeration of  previously  detached  parcels  of  sovereignty — 
each  member  holds  a  share  in  the  sovereignty.  Now,  let  me 
for  a  moment  withdraw  my  one  three-millionth  part  of  sov- 
ereignty, which  would  be  my  due  for  myself  and  family,  and 
make  use  of  it;  for  instance,  let  me  make  a  one  three-millionth 
part  of  war  against  a  foreign  power,  giving  up,  on  the  other 
hand,  all  protection  I  might  otherwise  claim  of  the  United 
States.  I  declare  a  three-millionth  part  of  a  war  against  Great 
Britain.  I  will  not  kill,  I  will  only  wage  what  might  be 
fairly  considered  a  three-millionth  part  of  a  war.  I  take  for- 
cibly the  purse  of  an  Englishman  ;  they  catch  me ;  but,  in 
spite  of  my  open  declaration  of  war,  they  will  not  treat  me 
with  a  three-millionth  part  of  that  consideration  with  which 
even  a  common  soldier,  if  prisoner  of  war,  is  treated.  They 
try  and  transport  or  hang  me,  as  the  case  may  be ;  nor  is 
this  the  worst.  Not  one  pang  of  sympathy,  not  one  voice  in 
vindication  of  my  rights  at  home !  Not  one  speaker  on  the 
floor  of  Congress,  who  shows  that  Great  Britain,  by  disre- 
garding my  fraction  of  sovereignty,  has  seriously  endangered 
his! 

LXIV.  Blackstone  acknowledges  the  sovereignty  of  so- 
ciety, not  indeed  in  so  many  words,  but  the  relations  in  which 
the  laws  and  history  of  Great  Britain  stand  to  each  other 
forced  him  to  state  it  nevertheless.  The  reason  why  he  did 
not  distinctly  acknowledge  it  as  a  principle  was  because  he 
would  not  go  beyond  the  positive  law,  and  indeed  he  speaks 
of  "  fertile  imaginations"  being  requisite  to  furnish  the  cases 
of  such  a  violation  of  the  constitution  by  the  king  as  would 
amount  to  abdication.  But  it  does  not  require  a  fertile  imagi- 
nation" to  think  over  what  has  actually  happened  in  history 
so  many  times.  Still,  he  cannot  help  going  at  times  to  the 
very  limits  and  borders  of  positive  law.  Thus,  he  says,  "For, 
as  to  such  public  oppressions  as  tend  to  dissolve  the  constitu- 


SOCIETY  ALONE  IS  SOVEREIGN.  221 

tion  and  subvert  the  fundamentals  of  government,  they  are 
cases  which  the  law  will  not,  out  of  decency,  suppose."  (Vol. 
i.  244.)  Constitutional  law  has  nothing  to  do  with  decency, 
but  with  right,  and  right  alone.  The  constitution  of  England 
does  not  contemplate  these  cases,  because  positive  law  must 
end  somewhere,  and  though  the  constitution  were  to  adopt 
the  rocoss  of  Poland,  which  was  a  "  lawful  form  of  insurrec- 
tion" in  the  former  elective  monarchy  of  that  country,  it 
would  again  remain  to  be  decided  whether  there  is  or  is  not 
lawful  reason  for  the  rocoss.  The  passage  in  which  Black- 
stone  acknowledges  the  sovereignty  of  society  is  tbis  (vol. 
i.  245) : 

"  Indeed,  it  is  found  by  experience  that  whenever  the  un- 
constitutional oppressions,  even  of  the  sovereign  power" 
(meaning  the  royal  power),  "  advance  with  gigantic  strides 
and  threaten  desolation  to  a  state,  mankind  will  not  be  rea- 
soned out  of  the  feelings  of  humanity;  nor  will  sacrifice  their 
liberty  by  a  scrupulous  adherence  to  those  political  maxims 
which  were  originally  established  to  preserve  it.  And  there- 
fore, though  the  positive  laws  are  silent,  experience  will  fur- 
nish us  with  a  very  remarkable  case,  wherein  nature  and 
reason  prevailed.  When  King  James  the  Second  invaded  the 
fundamental  constitution  of  the  realm,  the  convention  declared 
an  abdication,  whereby  the  throne  was  rendered  vacant,  which 
induced  a  new  settlement  of  the  crown.  And  so  far  as  this 
precedent  leads,  and  no  farther,  we  may  now  be  allowed  to 
lay  down  the  law  of  redress  against  public  oppression.  If, 
therefore,  any  future  prince  should  endeavor  to  subvert  the 
constitution  by  breaking  the  original  contract  between  king 
and  people,  should  violate  the  fundamental  laws,  and  should 
withdraw  himself  out  of  the  kingdom  ;  we  are  now  author- 
ized to  declare  that  this  conjunction  of  circumstances  would 
amount  to  an  abdication,  and  the  throne  would  be  thereby 
vacant.  But  it  is  not  for  us  to  say  that  any  one,  or  two,  of 
these  ingredients  would  amount  to  such  a  situation  ;  for  there 
our  precedent  would  fail  us.  In  these,  therefore,  or  other 
circumstances,  which  a  fertile  imagination  may  furnish,  since 


222  THE  STATE. 

both  law  and  history  are  silent,  it  becomes  us  to  be  silent 
too;  leaving  to  future  generations,  whenever  necessity  and 
the  safety  of  the  whole  shall  require  it,  the  exertion  of  those 
inherent  (though  latent)  powers  of  society,  which  no  climate, 
no  time,  no  constitution,  no  contract,  can  ever  destroy  or 
diminish."  So  far  Blackstone.  I  have  only  to  remark  that 
the  "nature  and  reason"  which  prevailed  in  the  case  of  James 
II.  is  all  I  claim  for  the  foundation  of  the  state  with  its  sov- 
ereignty, that  the  end  of  the  passage  quoted  is  the  amplest 
acknowledgment  of  the  sovereign  power  of  society,  and  that 
I  prefev  to  call  sovereign  power  that  "  inherent  power"  whidi 
is  even  above  the  power  called  by  Blackstone  and  generally 
sovereign  power,  and  shall  designate  the  latter  by  a  different 
name.  From  the  next  section  it  will  appear,  however,  that 
this  "  inherent  power"  is  ever  active,  and  not  so  entirely 
"  latent,"  and  that  without  its  action  society  could  not  exist 
for  a  moment. 

May  I  be  permitted  to  conclude  the  present  section  with  an 
extract  from  Hallam  (Const.  Hist,  i.  page  393),  strongly  sup- 
porting the  view  just  given  :' 

"  In  point  of  fact,  neither  James  I.  nor  any  of  his  posterity 
were  legitimate  sovereigns,  according  to  the  sense  which  that 
word  ought  properly  to  bear.  The  house  of  Stuart  no  more 
came  in  by  a  lawful  title  than  the  house  of  Brunswick  ;  by 
such  a  title,  I  mean,  as  the  constitution  and  established  laws 
of  this  kingdom  had  recognized.  No  private  man  could  have 
recovered  an  acre  of  land  without  proving  a  better  right  than 
they  could  make  out  to  the  crown  of  England.  What  then 
had  James  to  rest  upon  ?  What  renders  it  absurd  to  call  him 
and  his  children  usurpers  ?  He  had  that  which  the  flatterers 
of  his  family  most  affected  to  disdain,  the  will  of  the  people ; 
not  certainly  expressed  in  regular  suffrage  or  declared  elec- 
tion, but  unanimously  and  voluntarily  ratifying  that  which  in 

'  *  I  think  the  best  name  for  what  is  usually  called  sovereignty  in  a  monarch, 
and  which,  according  to  me,  is  but  monarchical  supreme  power,  would  he.  prin- 
cipate,  not  principality.  We  speak  of  the  principate  of  Caesar;  the  word  bears 
its  legitimacy  within  it. 


PUBLIC   OPINION.  223 

itself  could  surely  give  no  right,  the  determination  of  the  late 
queen's  council  to  proclaim  his  accession  to  the  throne." 

LXV.  The  sovereignty  of  society  manifests  itself: 

1.  By  public  opinion. 

2.  By  the  generation  of  the  law. 

3.  By  power, 

I.  Public  opinion.     The  term  is  taken  here  in  its  most  com- 
prehensive sense,  not  only  meaning  the  opinion  of  the  com- 
munity in  as  far  as  it  has  been  made  public,  especially  with 
regard  to  some  specific  measures,  pending  or  adopted,  but  as 
the  opinion  of  the  public,  of  civil  society,  as  we  are  apt  to 
term  public  anything  connected  with  the  state,  for  instance, 
public  life,  public  character.     I  understand  by  public  opinion 
the  sense  and  sentiment  of  the  community,  necessarily  irre- 
sistible, showing  its  sovereign  power  everywhere.     It  is  this 
public  opinion  which  gives  sense  to  the  letter,  and  life  to  the 
law:  without  it  the  written  law  is  a  mere  husk.     It  is  the 
aggregate  opinion  of  the  members  of  the  state,  as  it  has  been 
formed  by  practical  life  ;  it  is  the  common  sense  of  the  com- 
munity, including  public  knowledge,  and  necessarily  influenced 
by  the  taste  and  genius  of  the  community.    How  is  it  formed? 
It  is  formed  as  the  opinion  of  any  society  is  formed,  which 
must  always  consist  of  leaders,  superior  men,  men  of  talents, 
or  well-informed  men,  who  had  an  opportunity  to  see  or  in- 
form themselves,  and  less  gifted  men,  or  less  informed  per- 
sons, the  acquiescing  or  trusting  ones.     Not  that  the  leaders 
prescribe  with  absolute  power;  they  only  either  pronounce 
clearly  what  has  been  indistinctly  felt  by  many,  or  they  start 
a  new  idea,  which,  in  being  received  by  the  acquiescing  ones, 
has  to  accommodate  and  modify  itself  to  the  existing  circum- 
stances.    The    leaders    themselves    are    under  the   strongest 
influence  of  that  sense  and  sentiment  of  the  community,  for 
from  early  childhood  they  live  in  the  same  relations  with  the 
others.     Public  opinion  is  not  only  an  opinion  pronounced 
upon  some  subject,  but  it  is  likewise  that  which  daily  and 


224  ^-^-^  STATE. 

hourly  interprets  laws,  carries  them  along  or  stops  their  oper- 
ation, which  makes  it  possible  to  have  any  written  laws,  and 
without  which  any  the  wisest  law  might  be  made  to  mean 
nonsense.  It  is  that  which  makes  it  possible  to  prescribe  and 
observe  forms  without  their  becoming  a  daily  hindrance  of  the 
most  necessary  procedures  and  actions  ;  it  is  that  mighty 
power  which  abrogates  the  most  positive  laws  and  gives  vast 
extent  to  the  apparently  narrow  limits  of  others;  according 
to  which  a  monarch  ever  so  absolute  in  theory  cannot  do  a 
thousand  things,  and  according  to  which  a  limited  magistrate 
may  dare  a  thousand  things;  which  renders  innocent  what 
was  most  obnoxious,  and  at  times  makes  useless  the  best 
intended  measures,  protecting  sometimes  even  crime. 

I  do  not  indeed  say  that  this  sense  and  sentiment  of  the 
community  is  always  right.  Who  will  deny  that  it  was  the 
public  opinion  of  the  seventeenth  century  that  there  were 
witches,  that  they  ought  to  be  killed — a  power  which  forced 
judges  against  their  judgment  to  allow  the  unhappy  beings 
to  be  prosecuted,  however  distressing  the  whole  procedure 
might  be  to  them  ?  See  an  instance  in  the  Life  of  the  Lord 
Keeper  Guilford,  London,  1819,  vol.  i.  page  250.  But,  gen- 
erally speaking,  public  opinion  is  less  apt  to  be  wrong  on 
broad  important  questions  than  that  of  individuals,  because  it 
is  nothing  else  than  the  result  of  individual  opinions  modified 
by  one  another.  "  I  know  one,"  said  Talleyrand,  according 
to  De  Pradt's  Guarantees  to  be  asked  of  Spain,  chap,  v.,  "who 
is  wiser  than  Voltaire  and  has  more  understanding  than  Na- 
poleon himself  and  all  ministers  who  ever  were,  are,  or  will  be, 
and  this  one  is  public  opinion."  In  the  second  part  of  this 
work  I  shall  inquire  into  the  question  when  a  citizen  is  bound 
boldly  to  disregard  public  opinion,  and  when  to  submit  to  it 
his  individual  judgment;  here  I  have  to  treat  of  it  only  as  the 
attribute  of  sovereignty. 

Public  opinion  has  abolished  torture  long  ago  in  Denmark, 
yet  but  lately  it  was  abolished  by  written  law.  The  code  of 
Charles  V.,  still  the  penal  law  of  several  parts  of  Germany, 
prescribes    most   severe   and    frequently  cruel   punishments, 


PUBLIC  OPINION. 


225 


entirely  at  variance  with  the  spirit  of  the  age,  which  is  but  a 
different  name  for  public  opinion  applied  to  a  larger  society 
and  considered  as  to  a  given  period.  The  consequence  has 
been  that  all  manuals  of  German  penal  law  give  the  respective 
punishments  fixed  by  the  code  of  Charles  and  those  which 
are  awarded  according  to  "practice."  Yet  this  "practice" 
has  never  been  legislatively  enacted.  No  one  according  to 
law  shall  be  present  at  the  debates  of  the  British  parliament, 
except  members.  This  is  the  positive  law.  There  are  gal- 
leries built  for  the  public,  and  convenient  places  for  reporters; 
this  is  the  public  opinion.  Let  any  one,  let  the  ministers,  let 
the  monarch,  dare  to  insist  upon  that  law.  The  British  con- 
stitution, that  is,  the  law,  says  that  the  king  may  veto  any  bill 
which  has  passed  through  both  houses  ;  British  public  opinion 
prevents  the  monarch  from  making  direct  use  of  the  privilege, 
at  least  he  has  not  withheld  his  approval  for  now  nearly  two 
centuries.  A  law  banishes  all  members  of  the  Bonaparte 
family  from  France.  Lately  one  of  them  visited  the  king  of 
the  French  at  the  Tuileries;  all  the  papers  mentioned  it. 
Why  are  so  many  things  absolutely  impossible,  in  spite  of  all 
the  law  that  might  be  cited  in  favor  of  it?  Because  public 
opinion  decides  thus,  that  is,  in  many  cases,  common  sense, 
which  must  always  decide  on  the  application  of  rules,  whether 
they  be  furnished  by  grammar,  architecture,  or  politics.  (See 
Hermeneutics.) 

When  Queen  Victoria  went,  on  December  21,  1837,  to  the 
lords  to  give  assent  to  various  bills,  the  clerk  called  out,  after 
the  title  of  one  had  been  read,  Le  roi  le  veut  (the  king  wills  it), 
instead  oi  La  reine  le  7^^/// (the  queen,  etc.).  The  clerk,  accord- 
ing to  the  papers,  did  not  correct  himself  Now,  suppose 
a  lawyer  were  to  build  an  argument  upon  this  bill's  never 
having  become  a  law,  because  it  had  never  received  the 
royal  assent,  there  being  at  the  time  no  king  in  England.  He 
might  bring  most  powerful  arguments  in  favor  of  the  neces- 
sity of  observing  strict  forms,  the  more  urgent  the  more 
important  the  respective  spheres  of  action  are;  he  might 
quote  innumerable  precedents  of  mere  violated  forms  having 

15 


226  THE  STATE. 

defeated  otherwise  legal  measures ;  he  might  bring  powerful 
analogy  within  a  hair's  breadth  of  his  case ;  and  yet  would 
he  be  able  to  move  his  case  one  step?  Every  one  would 
laugh,  or,  if  not,  so  much  the  worse  for  the  state  of  public 
opinion. 

There  is  to  this  day  a  law  on  the  statute-book  of  South 
Carolina,  unrepealed  by  the  authority  which  made  it,  to  the 
effect  that  every  male  of  age  shall  go  to  church  well  armed. 
The  dangerous  state  of  the  country  at  the  time  required  it 
against  the  Indians.  Suppose  a  conscientious  citizen  were  to 
appear  in  church  with  a  brace  of  pistols,  cutlass,  and  rifle. 
The  whole  community  with  one  voice  would  set  him  down 
as  deranged,  he  would  lose  all  public  confidence,  and  would 
most  materially  injure  his  family,  besides  disturbing  public 
worship.  Suppose,  on  the  other  hand,  any  public  officer  were 
to  take  it  into  his  head  to  fine  a  citizen  for  not  having  ap- 
peared well  armed  in  church,  according  to  the  old  law.  Would 
he  not  be  scouted  by  judge,  jury,  people,  by  every  one  ?  And 
the  law  does  stand  repealed  by  the  irresistible  sense  and  sen- 
timent of  the  community.  This  does  by  no  means  preclude 
cases  of  strict  adherence  "to  an  obsolete  law  for  the  very  pur- 
pose of  drawing  public  attention  to  it  and  of  effecting  a  final 
implicit  expression  of  repeal  by  public  authority.  For  laws, 
though  obsolete,  and  universally  acknowledged  to  be  so,  may 
still  be  of  a  character  which  renders  them  either  dangerous 
or  inconvenient  in  special  cases.  Or  they  may,  in  their  char- 
acter, be  iniquitous,  and  the  public  morality  may  demand  their 
erasure  merely  on  the  score  of  public  propriety,  decorum,  or 
morality. 

Public  opinion,  in  this  wide  sense,  is  the  continued  sover- 
eign action  of  society,  and  also  the  link  between  society  at 
large  and  the  state,  when  a  given  society  is  either  narrower  or 
wider  than  a  given  state. 

We  are  apt  to  believe  that,  from  the  want  of  publicity,  ab- 
solute states  are  not  ruled  by  public  opinion.  It  is  true  that 
public  opinion  does  not  act  upon  so  many  subjects,  but  it  is 
in  Asia  as  powerful  as  in  Europe,  on  those  subjects  on  which 


PUBLIC  OPINION.  227 

it  acts  at  all/  Let  an  Eastern  monarch  attempt  anything 
against  the  opinion  of  his  people  at  large, — for  instance,  attempt 
public  irreverence  against  the  Prophet.  The  king  of  Denmark 
was,  by  the  fundamental  law  of  1660,  absolute  in  every  way. 
The  fancy  of  a  man  brought  up  in  a  constitutional  country 
cannot  invent  a  law  which  provides  in  so  detailed  a  manner 
for  the  monarch's  being  above  all  law,  and  that  nothing  what- 
soever shall  ever  be  binding  for  him  or  limit  his  power,  not 
even  he  himself  So  far  the  theory  or  the  letter;  but  was  the 
Danish  king  really  at  liberty  to  do  what  he  liked  ?  Suppose 
he  had  attempted  so  mean  a  thing  as  the  prohibition  of  the 
Danish  national  dish,  called  grit :  would  his  absolute  power 
have  supported  him  ?  Theoretically,  the  king  of  Prussia  was 
absolute  when  he  ordered  his  minister,  by  cabinet  order  of 
July  18,  1798,  to  lay  certain  proposals  of  a  union  between 
Lutherans  and  Calvinists,  before  the  public,  and  report  to 
him,  "  when  public  opinion  has  decided  upon  their  expedi- 
ency," etc.  March  25,  181 3,  the  emperor  of  Russia  and  the 
king  of  Prussia  issued  a  proclamation,  which  contains  this 
passage  :  "  Their  majesties  expect  a  faithful  and  complete  co- 
operation of  every  German  prince,  and  they  are  pleased  to 
suppose  that  none  will  be  found  among  them  ready  to  be  and 
remain  a  traitor  to  the  cause  of  Germany,  so  that  thereby  he 
should  deserve  to  be  annihilated  by  the  power  of  public  opin- 
ion and  the  force  of  arms,  which  have  been  taken  up"  (against 
Napoleon). 

At   times  we    see  a  man  apparently  act  directly  against 
public  opinion.     Richelieu  saw  the  enormous  extent  to  which 


■  *  "  The  emperor — the  theoretical  father  of  his  people — does  not  find  it  so 
easy  opeti/y  to  impose  new  taxes  as  his  necessities  may  require  them ;  and  his 
power,  though  absolute  in  name,  is  limited  in  reality  by  the  endurance  of  the 
people,  and  by  the  laws  of  necessity."     Davis,  Chinese,  vol.  ii.  p.  428. 

Guizot,  in  his  History  of  Civilization  in  Europe,  says  that  public  opinion  was 
stronger  under  Louis  XIV.  and  Louis  XV.,  and  exercised  more  influence  upon 
government,  than  at  any  previous  period,  yet  at  none  had  all  the  direct  and  offi- 
cial means  by  which  the  people  can  exercise  any  authority  more  completely  been 
cut  off.  It  impelled  government  more  strongly  than  when  the  estates  existed  or 
the  parliaments  interfered  in  politics.     See  his  Lecture  VI. 


228  THE  STATE. 

duels  were  then  carried  in  broad  daylight.  He  dared  to  exe- 
cute according  to  law  two  noblemen  (Bouteville  and  Chap- 
pelles)  for  this  offence.  The  whole  society  seemed  vehe- 
mently opposed  to  him,  nor  would  he  have  been  able  to  carry 
his  point,  had  it  not,  after  all,  in  a  still  larger  society  been  felt 
that  he  was  right.  It  is  one  of  the  greatest  traits  of  a  noble 
citizen  to  be  able  to  see  one  layer  of  public  opinion  through 
another,  or,  if  he  does  not  see  it,  to  trust  in  God  that  it  must 
be  there,  and  act  accordingly. 

Napoleon,  a  good  authority  as  to  the  practical  operation 
of  public  opinion,  said,  "Public  opinion  is  an  invisible," mys- 
terious power,  which  nothing  can  resist;  nothing  is  more 
movable,  more  vague,  more  powerful ;  and,  capricious  as  it 
is,  it  is  nevertheless  true,  reasonable,  just,  far  more  frequently 
than  one  is  apt  to  think."  (Las  Cases,  Memorial,  vol.  i.  p. 
452,  edit,  of  1824.) 

LXVI.  2.  Law,  from  the  Anglo-Saxon  Lagu,  legu,  that 
which  is  laid  down,  settled,''  is  a  rule  of  action  with  binding 
force,  or  law  is  a  (general  and)  binding  rule  respecting  effects 
to  be  produced  by  certain  agents.  These  agents  may  be  phys- 
ical or  moral.  Laws  which  refer  to  the  former  are  called  la^vs 
of  nature,  inasmuch  as  we  imagine  the  principles  of  the  phys- 
ical changes  prescribed  by  the  authority  of  the  maker.  Laws 
respecting  moral  agents  determine  human  will  as  a  free  power 
of  rational  beings.  They  ought  to  be  obeyed,  but  may  be  dis- 
obeyed. If  these  laws  relate  to  the  outward  actions  only,  they 
are  jural  laws  [leges  juris) ;  if  they  relate  to  the  internal  assent, 
depending  upon  man's  motives,  they  are  laws  of  virtue.  If 
we  call  the  first,  principles ;  the  latter,  commandments ;  we 
may  call  jural  laws,  simply  laws.     We  have  to  do  here  with 

'  Swedish  laga,  in  ancient  Low-Saxon  lage,  connected  with  German  legen,  the 
English  to  lay,  lay  down,  which  goes  through  all  Teutonic  and  many  other 
idioms.  (See  Adelung,  ad  verb.  Legen.)  The  German  for  law  is  Gesetz,  that 
which  has  been  set,  settled,  set  down.  The  Dutch  is  Wet,  from  weeten  to  know, 
of  the  same  root  with  the  English  to  wit,  that  which  is  known,  acknowledged. 
The  old  Frisic,  a,  e,  ewa.  See  likewise  Jus  in  Ramshorn's  Latin  Synonymies, 
vol.  ii.  p.  125. 


LAW. 


229 


these  alone,  and  I  shall  designate  them  by  the  simple  term 
law ;  using,  however,  for  the  present,  the  word  in  its  most 
comprehensive  sense,  that  is,  for  all  rules  which  direct  with 
binding  power,  no  matter  whence  it  arises,  our  jural  actions, 
or  actions  relating  to  right.  In  as  far  as  laws  are  rules  ac- 
knowledged (sanctioned,  authorized)  by  the  state,  that  is,  pub- 
licly by  society,  no  matter  in  what  manner,  whether  by  dis- 
tinct legislative  action  or  by  gradual  recognition,  for  instance, 
by  repeated  decisions  of  some  proper  authority,  law  is  public 
will.  In  many  cases  the  line  where  public  opinion  passes 
over  into  public  will  is  distinct;  in  some  cases  public  opinion 
is  so  strong,  decided,  and  binding,  respecting  some  specific 
subject,  that  the  line  cannot  be  so  distinctly  drawn.  At  other 
times  some  law  distinctly  says,  or  it  has  been  settled  by  cus- 
tom, that  well-settled  usage,  which  is  but  a  species  of  public 
opinion,  shall  be  law.  That  public  opinion,  taken  in  the  sense 
in  which  it  has  been  used  in  the  previous  section,  and  law, 
must  approach  to  each  other  in  many  cases  very  closely,  is 
clear  from  their  very  nature.  The  process  of  public  opinion 
passing  into  public  will  is  in  many  cases  imperceptible.  The 
question  now  is.  What  are  these  rules  which  determine  man's 
jural  actions  and  serve  to  others  as  rules  in  judging  of  them  ? 
They  are  the  following : 

Nature  and  necessity. 

Common  sense. 

Custom  and  usage  (the  unwritten  expression  of  public 
will),  either  in  any  branch  of  practical  life,  or  in  judicial 
matters  themselves,  and,  again,  either  existing,  but  as  yet 
not  specifically  acknowledged  by  authority,  or  distinctly 
acknowledged,  which  becomes  the 

Common  Law  of  the  land. 

Fundamental  laws,  charters,  organic  laws  ;  they  gen- 
erally rest  largely  upon  custom :  hence  the  oath  of  mon- 
archs  to  administer  the  government  according  to  law 
and  custom.     See  Hermeneutics. 

Written  constitutions. 


230  THE  STATE. 

Codes  of  other  countries,  which  have  force  by  the 
respect  paid  them,  as  the  civil  code  of  ancient  Rome  in 
many  countries  in  cases  on  which  the  domestic  law  is 
silent. 

Statute  law. 

Any  other  enacted  law 
^  Decisions. 

Precedents  of  any  other  sort,  as  repeated  measures. 

Overruling  decisions. 

Interpretation. 

Authentic  interpretation. 

Codes,  digests. 

LXVII.  It  is  easy  to  see  from  this  list  what  classes  form 
the  great  bulk  of  laws,  of  which  again  infinitely  the  largest 
part  emanate  from  society  and  are  enacted  by  society,  inas- 
much as  the  wants,  sense,  and  sentiment  of  society  demand 
it,  and  nothing  can  resist  it.  Lord  Somers,  the  distinguished 
Lord  High  Chancellor  of  England  under  William  III.,  de- 
clared that  he  knew  of  no  good  law,  proposed  and  passed  at 
his  time,  to  which  public  papers  had  not  directed  attention. 

Perhaps  it  is  necessary  to  say  a  word  respecting  one  large 
class — namely,  codes  and  written  constitutions.  They  cer- 
tainly seem  to  be  distinctly  enacted,  given  to,  not  made  by, 
the  people.  A  monarch,  for  instance  Frederic  the  Great, 
promulgates  such  a  code.  First,  did  he  make  it,  or  was  it 
digested  by  a  variety  of  committees,  composed  of  men  who 
brought  with  them  nothing  more  nor  less  than  what  they  had 
acquired  through  life  by  the  study  of  the  laws  of  the  land, 
and  again  from  teachers,  by  practice,  and  under  the  hourly 
influence  of  society  itself?  They  could  not  by  possibility 
bring  with  them  anything  else.  How  shall  a  man  act  to  re- 
move himself  extra  societatcm  ?  Some  laws  were  enacted  in 
the  code,  which  could  not  maintain  themselves,  and  they  were 
changed.  Secondly,  what  is  codification  ?  Not  the  spinning 
of  a  thread  from  out  the  solitary  brain  of  an  individual.  It  is 
the  collection,  condensation,  systematizing,  and  reconciling 


LAW.  231 

of  what  is  scattered  or  contradictory;  all  that  in  a  code  which 
is  not  conformable 'to  the  spirit  of  society  must  fall  to  the 
ground.  Men  like  Solon  and  Lycurgus  did  not  make  consti- 
tutions, like  Condorcet,  but  rather  collected  them.  This  does 
not  contradict  the  vast  power  of  a  great  mind  exercised  over 
his  community.  That  the  latter  acquiesce  in  or  support  what 
he  proposes  or  does,  belongs  likewise  to  the  sense  and  senti- 
ment of  the  community;  and  they  will  not,  cannot  acquiesce, 
except  where  that  great  mind  acts  out,  completes,  develops, 
and  elevates,  without  making  the  rash  attempt  to  establish 
something  absolutely  foreign  and  heterogeneous.  Even  for 
engrafting  a  nobler  branch  we  want  some  kindred  tree.  There 
is  hardly  such  a  thing  as  judge-made  law,  but  only  judge- 
spoken  law.  The  doctrine  pronounced  to-day  from  a  bench 
may,  indeed,  not  be  found  in  any  law-book;  but  the  judge 
has  ascertained  and  declared  the  sense  of  the  community,  as 
already  evinced  in  its  usages  and  habits  of  business.  If  he 
has  not  expressed  it  correctly,  society  will  show  its  sovereign 
power ;  his  decision  will  be  reversed  to-morrow  or  corrected 
by  a  statute. 

In  fact,  a  doubtful  decision  is  not  unfrequently  followed  by 
a  statute,  either  affirming  or  overruling  it,  as  the  judge  may 
have  succeeded  or  failed  in  expressing  the  public  opinion. 
For  example,  the  British  public  in  Queen  Anne's  time  were 
in  favor  of  permitting  the  indorsee  of  a  promissory  note  to 
sue  in  his  own  name.  The  judges  ruled  that  it  was  contrary 
to  the  doctrines  of  the  common  law.  Whereupon  the  public 
will  to  the  contrary  was  declared  in  the  statute  of  Anne,  In 
former  times  a  heathen  could  not  be  admitted  as  a  competent 
witness,  because  he  could  not  appeal  to  the  God  of  the  Chris- 
tians. It  was  law,  because  a  general  and  binding  rule.  Now 
this  view  is  exploded ;  his  conscience  is  appealed  to  through 
the  solemnities  of  his  own  religion.  And  this  is  law,  because 
a  general  and  binding  rule.  Who  enacted  it  ?  Society,  by 
its  power  sovereign  to  all  others.  If  the  judge  is  not  the  true 
exponent  of  public  opinion,  be  it  that  he  misrepresents  it,  or 
that    he    truly  administers    the   law,  which   law,  however,  is 


232  THE  STATE. 

against  public  opinion,  the  latter  will  prevail,  as  has  been  said, 
by  way  of  a  new  statute.  A  very  curious  case  of  this  sort  is 
within  the  memory  of  all  of  us.  In  England,  in  1818,  the 
trial  of  wager  by  battle  was  claimed  by  the  appellee  who  was 
proceeded  against  by  a  writ  of  appeal,  after  having  been  ac- 
quitted of  murder  upon  an  indictment.  The  final  judgment 
of  the  court  was  not  given,  as  the  appellant  declined  exposing 
his  life  in  the  contest,  and  prayed  no  further  judgment  of  the 
court,  and  the  appellee  was  discharged.  (Thornton  v.  Ash- 
ford,  I  Barn.  &  Aid.  405  ;  3  Chitty's  Blackstone,  337,  n.)  This 
appeal,  which  was  held  by  the  court  to  be  warranted  by  the 
existing  law,  gave  occasion  for  the  statute  of  59  George  III. 
c.  46,  passed  23d  June,  18 19,  and  which  completely  abolishes 
this  mode  of  trial  by  single  combat. 

It  is  a  very  great  mistake  to  consider  the  gradual  changes 
of  the  law  and  its  deviations  of  to-day  from  what  it  was  a 
century  ago,  without  the  public  action  of  a  legislature,  as  being 
abuses  which  have  crept  in.  It  is  society  which  demands  these 
changes,  and  effects  them  ;  it  is  these  changes,  according  to 
the  changes  of  things,  in  every  country  more  important  than 
the  public  enactments,  which  are  partly  but  the  consequence 
of  the  effected  changes,  partly  receive  value  and  life  only  by 
the  change  of  the  sense  of  the  community,  that  make  it  pos- 
sible for  society  to  last.  Or  ought  the  German  jural  society, 
for  the  love  of  written  law,  to  have  continued  all  the  revolt- 
ing cruelties  of  the  penal  code  of  Charles  V.,  despite  the 
essential  change  of  the  whole  nation  ? 

We  have  not  to  inquire  here  whether  a  monarch  theoret- 
ically stands  above  the  law  or  whether  princeps  legibus  solutus 
est;  we  shall  return  to  this  point.  Here  we  have  only  to 
inquire,  does  any  monarch,  ever  so  absolute  in  theory,  feel 
himself  in  any  degree  free  from  the  vast  bulk  of  the  laws  of 
that  society  over  which  he  rules?'     Where  is  the  question 


'  *  We  need  not  refer  to  free  people  only.  It  is  a  popular  maxim  of  the  Chi- 
nese, and  one  frequently  quoted  by  them,  that  "  to  violate  the  law  is  the  same 
crime  in  an  emperor  and  in  a  subject.     This  plainly  intimates  that  there  are  cer- 


POWER. 


233 


more  earnestly  discussed,  day  after  day,  what  may  be  done, 
and  what  cannot,  than  in  the  palace  of  the  absolute  monarch? 
How  many  thousand  irksome  things  must  not  a  monarch 
submit  to  for  no  other  reason  than  because  it  is  the  opinion 
of  the  society  of  which  he  forms  a  part !  Why  is,  as  Euno- 
mus  said,  "  the  little  finger  of  the  law  heavier  than  the  loins 
of  the  prerogative"  ?'  What  gives  in  all  free  countries  such 
mighty  meaning  to  the  word  law,  and  the  more  so,  the  more 
a  country  advances  on  the  path  of  civil  and  political  develop- 
ment ?  It  was  not  without  a  deep  meaning  that,  with  reference 
to  the  late  interesting  case  of  Stockdale  v.  Hansard,  the  printer 
to  the  Commons,  some  British  papers  (June,  1837)  headed  the 
article,  in  which  they  gave  Lord  Denman's  decision,  which  is 
against  the  printers  for  having  published,  under  the  direction 
of  the  house,  certain  documents  containing  a  libel,  "  The  Law 
versus  the  House  of  Commons."  (See  Am.  Jur.,  No.  38,  July, 
1838.)  The  whole  case  belongs  to  the  series  of  cases- which 
are  of  historical  importance,  because  representing  and  em- 
bodying a  great  principle,  gradually  developed  by  the  strug- 
gles of  many  centuries.^ 

It  may  indeed  be  convenient  in  respect  to  some  single  meas- 
ures to  claim  the  absolute  power  of  a  monarch  ;  but  who  will 
be  bold  enough  to  say  that  a  monarch  is  not  more  subject, 
owing  to  the  greater  publicity  and  importance  of  his  actions,  to 
the  fundamental  laws  and  framework  of  society  than  others  ? 
The  words  of  Coke,  in  the  memorable  debate.  May  12,  on  the 
right  of  the  king  to  imprison  a  subject,  previous  to  the  passage 
of  the  Petition  of  Right,  that  "  Magna  Charta  is  such  a  fellow 
that  he  will  have  no  sovereign"  (Rushworth,  vol.  i.  pp.  562- 
579),  contain  a  great  truth  and  express  what  has  been  stated. 
The  law  comes  from  society,  and  therefore  is  powerful  over 


tain  sanctions  that  the  people  look  upon  a.s  superior  to  the  will  of  the  sovereign 
himself.  These  are  contained  in  their  sacred  books,  whose  principle  is  literally 
salits  fopuli supretna  lex."     Davis,  The  Chinese,  i.  25. 

'  Wynne,  who  wrote  about  the  middle  of  the  last  century. 

'  [See  the  account  of  Stockdale's  actions  for  libel,  etc.,  in  May,  Const.  Hist, 
of  England,  i.  423-427.] 


234  THE  STATE. 

every  one.  That  which  strikes  the  senses  most  is  generally 
considered  the  most  important,  and  hence  the  dehision  that 
he  who  proclaims  the  law  or  completes  it  by  affixing  his  ap- 
probation is  considered  as  the  most  important  authority  in 
generating  the  law.  Yet  his  approval  is  powerfully  influenced 
by  society  again,  and  how  very  small  is  that  number  of  laws 
or  bills  over  which  the  supreme  power  exercises  a  more  abso- 
lute control,  compared  to  the  immense  bulk  of  all  those 
which  are  generated  by  society  and  form  in  every  state  the 
groundwork  for  the  regulation  of  all  laws !  Does  not  all  the 
law  of  a  nation  rest  on  usage  ?     Must  it  not  ? 

The  same  remark  applies  to  revolutions.  There  are  few 
revolutions  indeed  which  enter  so  deeply  as  the  first  French 
did.  Because  the  chief  of  the  state  changes,  or  his  dynasty, 
we  are  apt  to  believe  that  a  total  change  of  things  has  taken 
place.  Yet  that  which  remains  is  incalculably  vaster  than 
that  which  is  changed ;  that  is,  society  with  its  laws  remains 
master.  The  English  revolution  was  not  without  essential 
changes,  but  if  we  consider  how  much  remained  of  all  laws 
which  regulate  the  daily  and  therefore  most  important  inter- 
course between  man  and  man,  we  shall  see  at  once  that  the 
changes  are  but  a  minimum. 

LXVIII.  3.  Pozuer. — Where  can  possibly  power  be  except 
in  society?  The  question  here  is  not  even  whether  it  is  right 
that  it  is  so,  whether  it  ought  to  be  so,  but  how  else  by 
the  mere  idea  which  the  word  power  designates,  sovereign 
power,  power  above  all  other  power,  can  be  imagined,  except 
in  society.  Monarchs,  a  part  of  society,  have  of  themselves 
but  arms  and  feet  like  other  men  ;  and  physical  power,  such 
as  armies  and  navies,  still  more  that  power  which  they  exer- 
cise by  moral  agents,  must  of  course  be  lent  them  ;  that  is, 
society  forms  the  power,  and  may  use  it  for  one  or  the  other 
purpose.  Whatever  opposes  the  power  of  society  must  yield  ; 
whatever  society  insists  upon  is  carried,  "  by  parliament, 
through  parliament,  or  over  parliament,"  as  Mr.  Macaulay,  in 
the  memorable  debates  of  1832,  said  of  the  Reform  bill.    Nor 


POWER. 


535 


does  society  ever  cease  to  consider  itself  as  the  object  of  itself 
— which  is  what  I  called  the  self-sufficient  plenitude  of  sov- 
ereignty— and  all  its  parts  or  separate  functions,  however  ele- 
mentary the  character  of  their  authority  may  be  declared  by 
the  fundamental  law,  may  vanish  and  yet  not  take  anything 
from  the  sovereignty  of  society,  which  is  natural,  inherent, 
unavoidable,  and  imprescriptible,  not  made,  granted,  declared, 
or  arrogated. 

When  the  king  of  England  was  declared  to  have  abdicated, 
which  is  nothing  but  an  expression  of  constitutional  termi- 
nology, or  a  fiction,  in  order  not  to  use  the  harsher  or  to  avoid 
debates  on  the  plainer  term  of  dethronement,  the  lords  and 
commons  did  not  believe  British  society  had  thereby  lost  any 
particle  of  its  sovereignty,  but  they  began  the  preamble  of  the 
Declaration  of  Right  with  the  words,  "Whereas  the  lords 
spiritual  and  temporal,  and  commons  assembled  at  West- 
minster, lawfully,  _/////;',  and  freely  representing  all  the  estates 
of  the  people  of  this  realm,"  etc.  Now,  it  is  quite  impossible 
that  the  lords  and  commons  can  represent  the  king  according 
to  the  constitution  ;  but  they  can,  according  to  that  which  is 
above  even  the  fundamental  law — the  sovereignty  of  society. 
So,  whenever  the  commons  are  at  variance  with  the  lords  on 
a  point  on  which  the  former  have  distinctly  formed  their 
opinion  and  speak  in  the  name  of  the  country,  the  latter  must 
necessarily  give  way,  simply  because  the  country  or  society 
has  the  power.  The  lords  are  a  wise  institution,  under  the 
law,  but  society  is  that  which  prescribes  the  law.  Subjoined 
the  reader  will  find  a  statement  which  is  as  true  as  it  is  inter- 
esting, coming  as  it  does  from  a  minister  of  the  British  crown 
himself'     Take  on  the  other  hand  the  case  of  an  absolute 


'  If  the  papers  of  the  time  have  reported  correctly,  Lord  John  Russell,  one  of 
the  ministers  of  Queen  Victoria,  said  to  the  electors  of  Stroud,  soon  after  his  elec- 
tion, in  the  month  of  September,  1837,  "  At  the  revolution  in  1688,  the  decision  of 
the  house  of  lords  was,  that  James  the  Second  should  continue  upon  the  throne, 
and  that  certain  persons  should  be  chosen  to  exercise  the  regal  power  in  his  name. 
The  house  of  commons,  on  the  contrary,  declared  the  throne  vacant.  There- 
fore, had  the  house  of  lords  persevered  in  their  decision,  a  civil  war  must  have 


236  THE  STATE. 

monarch  who  becomes  wholly  unable  to  rule — by  derange- 


been  the  result.  But  the  lords,  knowing  their  duty  to  the  country,  finding  the 
house  of  commons  determined,  gave  way,  and  William  the  Third  was  placed 
upon  the  throne.  From  that  day  to  this,  whenever  the  house  of  lords  has  fitly 
understood  its  duty,  it  has  controlled  what  was  hasty  in  the  commons — has 
amended  what  was  imperfect — discussed  and  matured  what  was  not  sufficiently 
considered ;  but  whenever  the  house  of  commons,  speaking  in  the  name  of  the 
country,  have  formally  declared  their  opinion  upon  a  certain  topic,  the  house  of 
lords  has  not  made  itself  a  resisting  body  to  that  opinion.  On  two  occasions  it 
did  so,  but  only  for  a  very  short  time.  In  the  reign  of  Queen  Anne  the  policy  pur- 
sued by  the  ministry  with  respect  to  foreign  affairs  was  contradicted  by  the  house 
of  lords;  but  Anne  immediately  redressed  the  evil,  and  by  the  exercise  of  her 
prerogative  quickly  compelled  them  to  agree  with  the  house  of  commons.  On 
the  second  occasion,  a  measure,  supported  by  a  vast  majority  of  the  people  in 
every  part  of  the  country,  was  rejected,  as  essentially  mutilated  by  the  house  of 
lords;  but  Lord  Grey  immediately  took  stringent  measures  to  remedy  the  evil, 
and,  although  his  proposition  was  not  immediately  accepted,  the  lords  shortly 
afterwards  gave  up  and  retired  from  the  proposition  they  had  previously  made. 
This  is  the  real  duty  of  the  house  of  lords,  according  to  the  constitution  of  the 
country,  and  I  trust  that  in  the  end  they  will  become  fully  aware  of  it.  At  the 
same  time  it  must  be  acknowledged  that  among  the  various  alterations,  among 
the  various  corruptions  which  were  introduced  into  our  constitution  by  tory  min- 
isters, who  reigned  supreme  for  upwards  of  fifty  years,  must  be  numbered  that  of 
pouring  into  the  house  of  lords  such  a  flood  of  persons  of  their  own  political 
opinions  as  to  render  that  assembly  the  representative  of  a  particular  party 
rather  than  a  sound  constitutional  body.  I  believe  I  am  hardly  exaggerating  when 
I  say  that  in  the  course  of  fifty  years,  in  one  way  or  another,  sometimes  by  elec- 
tion, sometimes  by  nomination,  sometimes  by  partiality  in  the  creation  of  peers, 
not  less  than  two  hundred  persons  have  been  added  to  the  house  of  lords.  Of 
course  the  introduction  of  so  large  a  mass  of  individuals,  all  belonging  to  one 
party,  has  in  some  respects  changed  the  , character  of  the  house.  But,  what- 
ever the  amount  of  that  change  may  have  been,  it  has  not  entirely  altered  the 
sense  which  has  always  been  entertained  in  the  house  of  lords,  that  when  the 
commons  pronounce  a  decided  opinion  upon  a  great  question,  the  opinion  of  the 
lords  ought  immediately  to  follow."     So  far  Lord  Russell. 

"  Whatever  may  have  been  the  right  of  the  nobility  and  clergy  to  attend  in 
cortes,  their  sanction  was  not  deemed  essential  to  the  validity  of  legislative  acts." 
Prescott's  History  of  Ferdinand  and  Isabella,  2d  ed.,  Boston,  1835,  page  xlix., 
Introduction. 

*  On  the  other  hand,  in  1719,  when  Sunderland,  Somerset,  and  others  were 
anxious  to  get  the  Limitation  bill  passed,  in  order  to  keep  the  house  of  lords, 
after  a  few  creations,  from  any  further  increase,  Walpole  said  that  "  in  all  dis- 
putes  between  the  lords  and  the  commons,  when  the  upper  house  is  immutable, 
the  lower  must  sooner  or  later  be  obliged  to  recede."     It  was  at  this  time  that 


PO  WER. 


237 


ment,  for  instance.^  The  heir  presumptive  declares  himself 
regent,  or  monarch,  and  he  is  acknowledged  as  such.  Any- 
one who  opposes  his  authority  is  treated  as  guilty  of  treason. 
On  what  ground  ?  Because  the  heir  declared  himself  such  ? 
His  declaration  cannot  be  the  foundation  of  his  right,  because 
when  he  made  the  declaration  he  was  not  yet  monarch,  and 
therefore  had  no  right  to  do  so.  Because  the  heir  has  the 
power  to  do  so  ?  That  would  be  founding  his  whole  right 
in  force  alone — it  would  be  revolution  declared  permanent. 
Because  the  monarch  is  unable  to  rule  ?  But  who  says  so  ? 
The  heir  ?  There  is  no  law  which  gives  him  the  right  of 
doing  so  ;  it  would  be  a  power  above  the  supreme  power  of 
the  monarch.     His  right  can  only  be  founded  in  the  fact  that 


the  commons  most  strenuously  opposed  the  intention  of  the  king  to  divest  him- 
self of  the  privilege  of  creating  peers.  [From  Dr.  Lieber's  notes,  abridged. 
Comp.  Hallam's  Const.  Hist.,  iii.  319,  May's  Const.  Hist.,  i.  225.] 

'  *  So,  when  the  commons  in  1788  had  ascertained  that  George  IH.  was  de- 
ranged, Pitt  moved  three  resolutions,  in  the  second  of  which  the  same  words  are 
used,  namely:  "  That  it  is  the  opinion  of  this  committee  that  it  is  the  right  and 
duty  of  the  lords  spiritual  and  temporal  and  commons  of  Great  Britain  now  as- 
sembled, and  lawfully,  fully,  and  freely  representing  all  the  estates  of  the  people 
of  this  realm,  to  provide  the  means  of  supplying  the  defect  of  the  personal  exer- 
cise of  the  royal  authority,  arising  from  his  majesty's  said  indisposition,  in  such 
manner  as  the  exigency  of  the  case  may  appear  to  require."  Tomline,  Mem. 
of  Wm.  Pitt,  vol.  ii.  p.  407. 

And  in  the  discussion  upon  this  resolution  Pitt  used  these  momentous  words, 
when  Fox  claimed  the  right  of  regency  for  the  prince  of  Wales,  as  eo  ipso 
belonging  to  him  :  "  It  was  a  right  which  could  not  exist,  unless  it  were  capable 
of  being  expressly  and  positively  proved ;  whereas  the  right  of  parliament  was 
that  which  existed  of  course,  unless  some  other  right  could  be  proved  to  exclude 
it.  It  was  that  which,  on  the  principles  of  this  free  constitution,  must  always 
exist  in  every  case  where  no  positive  provision  had  been  made  by  law,  and 
where  the  necessity  of  the  case  and  the  safety  of  the  country  called  for  their  in- 
terpretation. The  absence  of  any  other  right  was  in  itself  enough  to  constitute 
the  right  of  the  two  houses  ;  and  the  bare  admission  that  the  right  of  the  prince 
of  Wales  was  not  clearly  and  expressly  proved  virtually  operated  as  an  admission 
of  every  point  which  he  wished  to  establish."     Tomline,  as  above,  p.  419. 

See  also  Pitt's  opinion  upon  the  statutes  in  13  Charles  II.,  declaring  that  the 
two  houses  cannot  act  without  the  king,  as  evidently  meaning  when  there  is  a 
king  to  act.  (As  above,  p.  471.)  The  whole  important  debate  is  but  one  com- 
mentary upon  the  sovereignty  of  society. 


238  THE  STATE. 

he  is  supported  by  society,  whom  common  sense  teaches  that 
a  deranged  monarch  ought  not  to  rule,  and  whose  opinion, 
therefore,  either  shown  pubHcIy  and  directly  or  by  acquies- 
cence, gives  him  the  right.  He  draws  it  from  the  sovereignty 
of  society,  which  in  the  nature  of  things  overrules  everything 
else,  and  has  done  so  as  long  as  history  remembers  facts, 

LXIX.  Government  is  that  institution  or  contrivance 
through  which  the  state,  that  is,  jural  society,  acts  in  all  cases 
in  which  it  does  not  act  by  direct  operation  of  its  sovereignty 
as  mentioned  above ;  or,  in  other  words,  government  is  the 
aggregate  of  authorities  with  all  that  is  directly  controlled  by 
them.  It  derives  its  power  from  the  sovereign  power  of  the 
state — that  is,  I  repeat  it,  from  the  necessity  of  the  existence 
of  society.  Governments  have  been  frequently  changed,  dy- 
nasties which  wielded  the  supreme  (not  sovereign)  power  have 
been  supplanted  by  others,  or  by  republican  governments. 
Now,  has  the  displaced  government  ever  taken  with  it  the 
sovereign  power?  that  is,  has  the  nation,  or  state,  left  behind, 
become  incapable  of  providing  in  every  way  for  itself  from 
its  own  self-sufficient  or  sovereign  power  ?  If  the  sovereign 
power  rests  in  some  one  or  somethiiig  else  than  the  state,  then 
we  have  in  the  latter  case  two  sovereign  powers,  which  is 
absurd. 

How  many  governments  has  the  world  seen  within  the  last 
fifty  years  in  France !  Yet  has  France,  the  French  state,  that 
is,  the  jural  society  composed  of  all  the  French,  ever  ceased 
on  that  account  ?  Was  France  in  England  when  Louis  XVIII. 
resided  there,  or  England  in  Holland  when  Charles  II.  resided 
in  the  United  Provinces  ?  The  following  words  of  Erasmus, 
who  surely  was  no  revolutionist,  apply  to  governments  in 
general,  and  we  must  remind  the  reader  here  again  of  what 
was  alluded  to  before,  that  to  the  unobserving  the  whole 
government  seems  to  be  changed  when  the  dynasty  only  is 
changed,  or  the  whole  state  seems  to  be  changed  when  gov- 
ernment only,  perhaps  nothing  more  than  the  executive  with 
a  few  institutions,  has  been  altered.     Erasmus  says  (Instit. 


ORIGIN  OF  GOVERNMENTS. 


239 


Princ.  Christian!,  vol.  iv.  p.  566,  F,  Leyden  ed.,  1703),  "Si 
torques,  si  sceptrum,  si  purpura,  si  satellitium  regem  faciunt,. 
quid  tandem  vetat  pro  regibus  haberi  tragoediarum  histriones, 
qui  iisdem  ornati  prodeunt  scenam  ?" 

LXX.  Governments  may  be  established  by  a  distinct  con- 
scious action  of  society  (see  farther  below  on  Majority  and 
Minority),  and  pronounce  the  right  to  change  it  whenever  that 
society  deems  proper,  as  is  the  case  in  the  United  States.  It 
must  not,  however,  be  forgotten  that  even  in  this  case  the 
state  is  not  formed  by  a  voluntary  joining  of  previously  en- 
tirely independent  elements.  Who  settles  first  that  such  or 
such  a  convention  shall  be  held,'  or  that  its  decrees  shall  be 
binding?  The  state,  that  is,  the  society,  exists  already  with 
millions  of  jural  relations  and  laws  ;  and  the  very  government 
which  is  newly  established  springs  from  and  rests  upon  the 
previously  existing  relations  of  right.  The  radical  error  by 
which  government  and  state  are  confounded  has  led  to  many 
very  serious  misconceptions,  of  which  the  chief  is  that  which 
relates  to  the  origin  of  the  state,  and  to  consequent  obliga- 
tions of  its  members.  Men  have  been  obliged  to  resort  to  a 
variety  of  fictions.  Thus,  Rutherforth,  who  merely  copies  his 
predecessors,  says  (Instit.  of  Nat.  Law,  book  ii.  chap,  i.),  "A 
society  is  a  number  of  men  united  together  by  mutual  con- 
sent, in  order  to  deliberate,  determine,  and  act  jointly  for  some 
common  purpose"  —  thus  designating  only  what  we  have 
termed  an  association,  which,  as  has  been  seen,  does  not  apply 
to  the  state,  for  when  was  this  mutual  consent  pronounced  ? 
Is  Russia  not  a  state?  Yet  there  is  indeed  no  deliberation. 
Much  as  we  may  disapprove  of  many  acts  of  the  Russian 
government,  no  one  can  deny  her  to  be  a  state.  Rutherforth 
then  endeavors  to  make  out  that  acts  of  the  whole  are  bind- 
ing upon  each,  and,  without  argument  or  proof,  he  passes  over 
from  the  whole  to  the  majority,  in  this  way:  "Whatever  is 
determined  by  the  whole  trby  the  greater  part."  This  is  not 
establishing  rights.  There  are  a  few  cases  in  history  which 
approach  very  much  to  the  above  presumed  formation  of  the 


240 


THE  STATE. 


state,  as  that  of  the  Providence  colony,  of  which  more  will 
be  said,  but  they  are  extremely  rare  cases,  and  besides  do  not 
solve  the  question  of  sovereignty  inherent  in  society,  by  the 
political  fiction  of  mutual  agreement.  The  state  is  natural, 
necessary,  uninvented. 

Or  the  government  has  grown  up  within  the  society  with- 
out any  specific  act  of  rebeginning,  but  by  many  distinct 
expressions  or  acknowledgments  of  its  most  essential  features, 
or  with  the  distinct  acknowledgment  of  certain  mutual  rela- 
tions between  the  government  and  the  state,  as  is  the  case  in 
England.  With  regard  to  the  latter,  I  instance  the  act  of 
settlement  or  bill  of  rights. 

Or  the  government  has  grown  up  within  the  society  with- 
out any  public  and  definite  expression  of  its  relations  to  the 
state,  and  has  perhaps  itself  greatly  co-operated  to  form  that 
state,  and  receives  the  support  of  the  people,  as  is  the  case  in 
Prussia. 

Or  the  government  is  forced  upon  the  people,  as  was  the 
case,  for  instance,  with  the  kingdom  of  Westphalia,  founded 
by  Napoleon,  and  given  by  him  to  his  brother  Jerome;  or 
the  people  have  never  yet  reflected  on  subjects  of  right,  and 
live  in  a  low  state  of  political  civilization.  In  the  first  case, 
society  is  the  acknowledged  source  of  power ;  in  the  second, 
the  source  is  more  distinctly  acknowledged  by  every  act  of 
the  nature  alluded  to  ;  in  the  third,  it  is  clear  that  government 
derives  its  power  from  society,  which  supports  it,  and  which 
government  rules  in  a  manner  to  obtain  this  support.  If  the 
people  were  to  rise  against  it,  and  to  establish  another  one, 
the  question  would  arise,  which  I  have  answered  already  in 
this  paragraph.  Does  the  government  take  the  sovereignty 
along  with  it?  The  change  once  eflfected,  who  would  deny 
the  new  government  the  lawfulness  of  its  actions?  In  the 
last  case,  who  imposes  the  government  ?  At  the  beginning, 
it  may  be  an  entirely  foreign  army,  or  foreign  money,  by  which 
a  sufficient  party  is  bought  to  support  it.  But  can  this  last 
any  length  of  time,  without  at  least  the  acquiescence  of  the 
people  ?     The  question  always  turns  upon  this  point,  Does 


ORIGIN  OF  GOVERAMENTS. 


241 


the  state  accept  the  government,  or  the  government  the  state? 
The  answer  is  clear.  The  government  is  obHged,  do  what  it 
may,  to  adopt  the  immense  mass  of  existing  jural  relations 
and  their  corresponding  laws.^  If  we  take  the  Barbary  States 
as  an  example,  where  a  soldiery  recruited  by  foreigners  rules 
with  iron  sway  over  the  people,  we  shall  find  one  of  two 
things.  Either  even  there  the  people  acquiesce  for  the  time 
in  it,  because  they  prefer  this  vicious  government  to  the  per- 
sonal dangers  to  which  an  attempt  at  change  would  expose 
them — and  though  I  may  have  a  right  to  do  a  thing,  it  may 
be  inexpedient,  and,  in  many  cases,  wicked,  in  consequence 
of  inexpediency,  to  make  use  of  the  right,  if  I  expose  thereby 
inconsiderately  many  of  my  fellow-beings  to  danger — or  the 
power  of  the  soldiery  effectually  prevents  all  attempts  at 
change.  If  the  latter  be  the  case,  then  it  is  a  state  of  things 
entirely  founded  upon  brutal  force,  which  prevents  for  a  time 
the  sovereign  power  from  acting,  as  brutal  force  may  prevent 
almost  any  power  from  acting.  Every  institution  must  go 
through  a  transition-state  at  some  period  of  its  development. 
If  an  opponent  were  to  object,  "Still,  is  it  not  a  state?"  I 
would  say,  "  Hardly ;  but  be  it  so,  would  any  one,  even  the 
stanchest  legitimist,  deny  the  oppressed  the  perfect  right  to 
free  themselves  ?"  Destroy  that  government,  if  government 
you  can  call  it,  and  the  dey,  with  his  adherents,  will  not  take 
the  sovereign  power  with  him,  but  the  freed  people  will  at 
once  exercise  it.  All  human  institutions',  all  great  ideas,  de- 
velop themselves  gradually,  per  intervalla  ac  spiramenta  tem- 
poris,  and  whenever  society  chooses  to  act,  it  can  do  so,  and 
has  the  right  to  provide  for  what  is  necessary  for  itself 

LXXI.  As    soon   as  the    strictly  patriarchal    government 


*  *  In  no  case  does  this  appear  clearer  than  in  conquests,  and  in  none  of  these 
perhaps  so  palpably  as  in  the  conquest  of  China  by  the  Mantchou  Tartars.  Tliey 
were  able,  indeed,  to  change  the  costume  of  the  Chinese,  to  cause  them  to  shave 
their  heads  in  Tartar  fashion  ;  but  observe  how  the  Tartars  became  Chinese,  not 
the  Chinese  Tartars  —  language,  law,  tradition,  politics,  religion,  industry — of 
everything  the  great  bulk  remained.  Every  conqueror  is  swallowed  up,  as  it 
were,  by  the  conquered.     Alexander  became  ar  Asiatic. 

16 


242  THE  STATE. 

ceases,  we  find  that  the   chiefs,   sheiks,  kings,  or  whatever 
they  may  be  called,  are  most  generally  eligible,  or  the  people 
elect  them  whenever  they  choose.     Strictly  hereditary  gov- 
ernments, with  a  fixed  line  of  descent,  are  but  of  late  origin, 
gradually  established  by  acquiescence,  or  according  to  some 
particular  views  prevailing  at  the  time,  e.g.  that  of  inheritance 
in  general  in  the  feudal  times,     (See  Palgrave's  Anglo-Saxon 
Commonwealth,  and  Turner,  History  of  the  Anglo-Saxons, 
viii.  I.)    The  descent  of  the  crown  by  primogeniture  is  of  but 
very  late  origin.     The  less  the  king  became  a  mere  feudal 
chief,  and  the  more  he  came  to  be  considered  as  the  head  of 
the  government  of  society,  in  short,  the  more  clearly  the  idea 
of  the  state  rose  out  of  the  feudal  system,  the  more  the  indi- 
visibility of  the  state  became  necessary,,  and  the  more  clearly 
did    people  see   that'  an  elective  monarchy  is  that   govern- 
ment which   offers,  in   most,  perhaps  in  all   cases,  the  least 
advantages  of  all.    In  Russia  the  czar  is  still  held  to  have  the 
right  of  appointing  his   successor.     In   England  parliament 
has  the  acknowledged  right  of  the  settlement  of  the  crown. 
But  nowhere   does  history  show  that  there  is  some  divine 
right  connected  with  the  descent  of  the  crown.     Philip  II.  of 
Spain    endeavored    to    exclude   Don   Carlos,  his    son.     Was 
it  a  divine  right  in  Philip  to  settle  the  succession?     Carlos, 
the   pretender,   in    1833,  declared    that   Ferdinand  VII.,   his 
brother,  had  no  right  to  change  the  succession ;  he,  therefore, 
according  to  Carlos,  cannot  have  been  sovereign  in  the  full 
sense  of  the  word.     Frederic  William  I.  of  Prussia  contem- 
plated the  exclusion  of  his  first-born  son  (Frederic  the  Great) 
from  the  throne.    The  sovereignty  cannot  reside  in  the  reign- 
ing family,   because  the  descent   of  the   crown  is  variously 
regulated  by  law  ;  this  law  then  regulating  the  descent  of 
sovereignty  must  be  superior  to  it,  it  seems ;   then  it  cannot 
be  sovereignty.     In  some  countries  the  crown  descends  from 
male  to  male  only,  in  others  the  women  are  included,  yet  the 
elder  female  giving  way  to  the  younger  male  in  direct  line  ; 
and  when   Captain  Cook  visited  Otaheite  he  found  that  the 
law  of  the  land  was,  that  the  king  ruled,  the  moment  a  son  was 


POWER   IN  THE  PEOPLE.  243 

born  to  him,  merely  for  the  latter,  who  assumed  the  govern- 
ment as  he  became  of  age,  whether  the 'father  was  living  or 
not ;  in  other  countries,  again,  the  monarch  is  elected. 

LXXII.  When  the  German  emperor  had  been  elected  by 
the    seven  chief  princes   of  the    empire,  called    electors,  he 
showed  himself  to  the  people,  who  were  asked  whether  they 
would  have  him.    After  they  had  exclaimed.  Fiat!  fiat!  fiat! 
he  was  crowned.     This  had  become,  of  course,  a  mere  form, 
but  it  shows  sufficiently  the  original  view  taken  of  the  power 
of  the  emperor,  or  the  theory  upon  which  it  was  founded. 
(See  section  lix.  of  this  book.)    Endless,  indeed,  would  be  the 
instances  to  show  that  from  earliest  times  the  view  was  taken 
that  rulers  had  their  power  from  the  people,  that  it  is  a  vested 
and  conditioned,  not  a  primordial  power,  forfeited  if  the  con- 
dition is  not  fulfilled.     Thus,  in  Aragon  the  formula,  "  as  long 
as  thou  performest  that  for  which  rulers  are  appointed,  and 
if  thou  not,  we  not"  {y  sc  no,  no),  and  that  in  Sweden,"  we  will 
remain  faithful  to  the  king,  and  keep  our  oaths,  provided  he 
do  so,"— used  at  the  diet  of  Suderkoping  in  1595,— prove  that 
society  felt  itself  justified  in  making  changes  in  government 
when  the  holders  of  supreme  power  used  it  to  the  essential 
disadvantage  of  society.     Many  persons  call  this  the  doctrine 
of  revolution,  because  the  people  may  often  think  that  gov- 
ernment acts  wTong,  when,  in  fact,  it  acts  most  wisely,  and 
that  all  stability  of  government,  so  important  to  society,  would 
be  undermined  if  society  could  change  it  whenever  it  deems 
proper.     Apart  from  the   fact  that,  whether  pleasant  or  no, 
dangerous  or  no,  such  is  the  fact,  founded  in  the  very  nature 
of  things,  it  need  only  be  suggested,  whether    indeed    the 
theory  that  kings  have  a  right  of  their  own,  no  matter  whence 
it  comes,  and  that  they  do  not  owe  their  power  to  the  people, 
is  not  far  more  revolutionary  and  dangerous  to  the  stability 
of  governments.     People,  history  shows,  are    not  so  easily 
movable  as  individuals,  nor  can  they  be ;  and  where,  indeed, 
is  any  guarantee  that  the  monarch,  a  frail  individual  after  all, 
like  all  the  rest  of  mortals,  will  not  abuse  his  power,  nay,  will 


244 


THE  STATE. 


not  be  obliged  to  abuse  it,  because  he  is  finite  and  subject  to 
all  the  influences  of  humanity,  united  with  a  high  degree  of 
power  ? ' 

LXXIII.  From  the  foregoing  it  will  be  easy  to  judge  in 
how  far  Hume  was  correct  when  he  said  that  opinion  is  the 
first  foundation  of  all  power.^'  It  is,  questionless,  true  that  a 
monarch  of  himself  can  do  nothing  ;  he  may  effect  much 
against  the  true  interest  of  the  people,  by  an  army  and  money. 
But  who  compose  this  army  ?  who  gives  the  money  ?  The 
first  cannot  be  drawn  together  by  the  physical  force  or  any 
supernatural  power  of  the  monarch,  nor  can  the  latter  be  ex- 
tracted from  the  people  by  any  such  means.  Consent,  from 
whatever  source  it  may  flow,  is  requisite;  for  of  himself  the 
monarch  is  but  a  human  individual,  like  any  other  mortal 
being,  as  we  see  at  the  moment  when  consent  or  support  is 


I  A  lately-published  work  by  Mr.  Michelet,  Origines  du  Droit  Fran^ais,  con- 
tains many  passages  interesting  in  regard  to  the  subject  treated  of  in  the  above 
section.  It  is  always  pleasing  to  find  an  important  theory  unequivocally  and 
succinctly  pronounced,  be  it  in  words  or  symbols,  and  I  do  not  hesitate  to  quote, 
on  that  account,  the  following  passage : 

"  The  duke  of  Carinthia  was  not  allowed  to  sit  upon  his  marble  throne  till  he 
had  given  money.  This  donation  was  the  coeniptio,  the  purchase  of  his  right.  • 
Nowhere  does  the  sovereignty  of  the  people  (as  a  sleeping  abstract  annunciation) 
appear  more  haughtily  declared  than  in  this  formality.  It  bears  the  seal  of  a  re- 
mote antiquity,  of  an  Homeric  or  Biblical  simplicity.  The  duke  walked  towards 
the  marble  throne  in  the  dress  of  a  peasant.  But  a  real  peasant  already  occu- 
pied it,  attended  by  the  sad  and  severe  symbols  of  the  laboring  people— the  black 
bull  and  the  lean  horse.  Then  commenced  this  rude  dialogue.  '  And  who  so 
proudly  dares  enter  here  ?'  said  the  peasant.  '  Is  he  a  just  judge  ?  Has  he  the 
good  of  the  country  at  heart  ?  Is  he  born  free  and  a  Christian  ?'  '  He  is,  and 
he  will,'  answered  the  duke.  «  I  demand,  then,  by  what  right,'  retorted  the 
peasant,  '  he  will  force  me  to  quit  this  place.'  '  He  will  buy  it  of  you,'  was  the 
answer, '  for  sixty  pennies,  and  the  horse  and  the  bull  shall  be  yours,'  etc.  No  less 
ancient  or  deeply  significant  was  another  part  of  the  same  ceremony.  Whilst 
the  duke  brandished  his  sword  towards  the  four  winds,  whilst  he  sat  with  his  face 
to  the  sun  and  conferred  fiefs,  three  families  had  a  right  to  mow,  to  pillage,  and  to 
burn.  The  interregnum  of  the  sovereign  power  was  thus  represented  as  the  sleep 
of  the  law  ;  and  the  people  saw  in  this  form  that  they  must  make  haste  to  abdicate 
and  to  give  themselves  a  defender."  [See  J.  Grimm,  Rechtsalt.,  ist  ed.,  p.  253.] 
=  Essay  IV.  of  the  First  Principles  of  Government. 


FOUNDED    ON  OPINION.  245 

withdrawn,  if  any  doubt  could  exist.  A  state  may,  indeed, 
for  a  long  time,  be  organized  like  a  man-of-war,  on  board  of 
which  the  marines  are  used  to  keep  the  sailors  in  due  order, 
and  to  watch  over  them  if  in  irons,  and  the  sailors  must  keep 
the  marines  subdued  should  they  become  mutinous.  But  what 
could  the  captain  and  all  the  officers  effect,  if  at  heart  the 
crew's  opinion  were  not  with  them?  Would  they  not  be 
thrown  overboard  ?  If,  however,  by  opinion  we  mean  some- 
thing of  which  we  are  clearly  conscious,  in  this  case  an 
avowed  and  positive  assent,  and  not  only  the  absence  of  dis- 
sent, the  expression  is  not  so  correct.  States  exist  long  before 
men  come  to  a  clear  perception  of  the  character  and  neces- 
sity of  the  state,  as  we  have  seen,  because  they  cannot  live 
without  right,  without  law.  Be  it,  however,  granted  that 
opinion  is  the  first  foundation  of  all  power,  it  remains  still 
to  be  explained  whence  opinion  receives  the  authority  to 
establish  that  power.  Opinion  is  the  support  of  all  vested 
or  secondary  power,  and  a  mighty  one  indeed,  as  has  been 
seen,  it  is  of  itself.  But  the  first  source  of  all  power  is 
sovereignty. 

LXXIV.  Had  the  terms  state,  government,  sovereignty, 
supreme  power,  and  other  important  ones  in  political  termi- 
nology been  always  used  with  precision,  or  had  it  been  possi- 
ble, according  to  the  existing  stages  of  civil  progress,  strictly 
to  discriminate  them,  far  less  dispute  with  regard  to  the  true 
source  of  power  would  have  afflicted  mankind.  Attention  is 
first  attracted  by  outward,  prominent  marks,  and  the  supreme 
power  may  well  be  called  the  prominent,  outward  mark  of  the 
state.  It  was  natural,  therefore,  that  this  should  be  frequently 
taken  for  the  sign,  attribute,  and  essence  of  the  state,  and  that 
great  confusion  should  exist  respecting  the  persons  who 
wielded  this  power,  the  power  itself,  and  the  state  for  which 
it  is  wielded.  But  if  the  government  is  not  the  monarch,  the 
monarch  not  the  state,  if  "  the  state  will  endure"  though  Louis 
XIV.  may  die,  it  clearly  follows  that  sovereignty  is  an  attri- 
bute of  the  state,  not  of  the  monarch.     Many  circumstances 


246  THE  STATE. 

have  contributed  to  increase  the  confusion,  even  the  origin  of 
the  word  sovereign.  Sovereign  (from  the  French,  a  word  to 
be  found  in  all  the  idioms  of  Latin  origin,  as  if  from  superaims) 
meant,  originally,  highest,  excellent,  and  was  the  same  with 
supreme.^  It  was  applied  therefore  to  the  monarch,  as 
highest,  chief,  especially  in  the  feudal  times,  when  the  king 
or  prince  was  not'  monarch  in  the  sense  in  which  we  take  the 
word,  but  the  chief  one,  the  leader,  frequently  the  pTimus  mtcr 
pares.  Thus,  prince,  from  pnnceps,  the  first,  chief  one,  the 
German  Furst  (which  meant  originally  what  the  English  first 
now  signifies,  and  is  the  superlative  of  vor,  pronounced  fore, 
the  English  before,  meaning  therefore  the  foremost,  the  high- 
est, so  that  actually  in  the  ancient  Mirror  of  the  Suabians,  a 
collection  of  Suabian  law,  chap.  cx\'.,  Pnnceps  and  Furst  are 
explained  by  vorderst,  i.e.  foremost),  the  Swedish  F'orste,  Dan- 
ish Fyrste,  and  Dutch  Vorst,  all  lead  to  the  same  original 
idea.  The  meaning  was  plain  and  simple,  just  as  dux  or  duke 
and  He7'zog,  without  any  mysteriousness  as  to  the  extent  or 
origin  of  the  power.  Religion,  as  embodied  in  the  church, 
and  not  only  as  the  spiritual  life  of  the  individual,  being  the 
main  moving  principle  of  the  middle  ages,  and  penetrating 
every  form  and  substance,  became  the  cause  that  ideas  drawn 


'Thus,  we  say  still,  "sovereign  contempt,"  "a  sovereign  remedy."  The 
French  Dictionary  of  the  Academy  gives  the  following  definition  of  soiiverain  : 
ce  qui  «/  au  phis  haiit  point  en  son  ge7ire.  It  speaks  of  souverainte  absolue, 
limitee,  h^r^ditaire,  etc.  Consequently,  it  means  nothing  but  supremacy,  supreme 
power.  The  Nouveau  Diciion7iaire  tiniversel  des  Syno7tytfies,  etc.,  by  F.  Guizot, 
Paris,  1833,  distinguishes  between  souverain  and  suprhne,  that  the  idea  of  power 
belongs  to  the  first,  and  of  any  elevation  to  the  highest  degree  to  the  latter. 
•'  God,"  it  says,  "is  the  supreme  being,  since  he  is  the  being  by  way  of  excel- 
lence and  by  essence;  he  is  the  sovereign  lord  of  all  things,  inasmuch  as  he  is 
almighty  and  author  of  all  things."  The  ancient  parliaments  in  France,  the 
highest  judicial  courts,  were  called  cours  sotiveraines.  There  existed  in  Holland, 
in  the  fifteenth  centur\',  certain  societies  of  poets,  or,  at  least,  rhymestei-s,  then 
called  rhetoricians.  Philip  the  Plandsome  united  the  various  societies  or  "cham- 
bers," in  the  year  1499,  and  appointed  a  chamber  of  fifteen,  called  "  Jesus  with 
the  Balsam  Flower,"  as  "  sovereign  chamber,"  and  the  chaplain  of  the  prince 
was  made  its  "sovereign  prince."  Van  Campeu's  History  of  the  Netherlands, 
Hamburg,  1831,  vol.  i.  p.  317. 


THEOCRACY.  247 

from  the  Bible  were  carried  over  to  the  crowned  heads  of 
Christianity.  They  came  to  be  called  the  anointed  of  the 
Lord,  as  the  kings  of  Israel  were.'  The  essential  character 
of  the  Israelitic  government  was  theocratic,  and  it  seem.s  that 
Moses  was  not  desirous  of  establishing  a  monarchy  (Deut. 
xvii.  14-20).  But,  the  theocratic  government  having  almost 
entirely  decayed  after  Joshua,  the  people  asked  Samuel  to 
give  them  a  king.  He  yielded  with  great  reluctance  (i  Sam. 
viii.  5-22).  The  king,  being  called  to  the  crown  by  theocratic 
choice,  was  considered  the  vicegerent  of  Jehovah,  yet  his  regal 
authority  was  limited  by  the  terms  of  election,  the  ancient 
liberties  of  the  people,  and  the  constitution  of  the  tribes.^ 
These  theocratic  peculiarities  found,  as  far  as  the  altered 
state  of  things  admitted,  a  ready  reception,  and  though  the 


»  *  With  this  view  of  inherent  legitimacy  is  connected  the  superstition  of  the 
monarch's  curing  by  touch.  In  France  the  formula  was,  "  The  king  touches  thee, 
God  cures  thee." 

*  Manual  of  Hebrew-Jewish  Archaeology,  by  W.  M.  L.  de  Wette,  D.D.,  Prof, 
of  Theol.  in  the  Univ.  of  Basle,  2d  ed.,  Leipsic,  1830,  division  Royalty.  The 
Bible,  if  not  taken  as  a  book  of  religion  and  history  only,  may  very  naturally  be 
abused  to  prove  anything  and  any  theory.  It  is  always  so  when  we  confound  dis- 
tinct spheres.  The  solar  system,  with  its  many  stars,  has  been  used  to  prove 
monarchy,  nobility,  and  people  to  be  an  order  of  things  founded  in  nature.  From 
the  passage  in  Luke  xxii.  38,  "  Domine,  ecce  gladii  hie  duo :  ille  autem  di.xit 
eis.  Satis  est,"  it  was  proved  in  the  middle  ages  that  the  two  powers,  the  pope 
and  the  emperor,  must  rule  over  all  Christendom.  There  is  nothing  that  cannot 
be  made  to  support  anything,  if  we  once  resort  to  what  I  have  called,  in  the 
Hermeneutics,  ex  post  facto  interpretation.  Every  sort  of  government  has  been 
recommended  as  the  most  pleasing  to  God,  because  founded  upon  or  copied  from 
the  Bible,  from  the  theory  of  the  divine  right  of  monarchs  to  the  harshest  demo- 
cratic extravagance.  Nor  have  the  aristocrats  remained  behindhand.  Scheele,  a 
Dutch  nobleman,  in  the  middle  of  the  seventeenth  century,  supported  his  defence 
of  aristocratic  government,  in  his  two  works  De  Jure  Imperii  and  Libertas  Pub- 
lica,  as  much  by  passages  of  the  Bible  as  by  political  reasons.  Who  does  not 
know  the  contradictory  results  in  politics  at  which  the  various  parties  during  the 
English  revolution  arrived,  always  deriving,  as  they  pretended  and  sometimes 
sincerely  thought,  the  truth  of  their  theories  from  the  Bible?  We  might  with 
equal  justice  derive  our  penal  law,  architecture,  or  the  theory  of  any  science  or 
art  from  it.  I  have  already  on  former  occasions  referred  to  Archbishop  Whately's 
remarks  respecting  this  unhallowed  abuse  of  the  Bible,  in  his  Introductory  Lec- 
tures on  Political  Economy,  London,  183 1,  page  29,  et  seq. 


248 


THE  STATE. 


supremacy  of  the  church  and  absence  of  national  churches 
did  not  allow  the  idea  of  the  monarch's  responsibility  to  be 
extinguished,  yet  some  most  extravagant  ideas  grew  up. 
Charles  IV.,  emperor  of  Germany,  declared  that  the  souls 
of  princes  are  better  endowed  by  the  Lord  than  those  of 
common  people,  and  that,  too,  when  he  recommended  so  un- 
worthy a  subject  as  his  son  Wenceslaus  to  the  princes  to  be 
elected  as  his  successor.  The  anointing  of  monarchs  was 
believed  by  many  to  establish  a  more  direct  communion  with 
the  Deity.  Indeed,  there  is  no  accounting  for  the  strange 
views  to  which  people  may  be  led.  Pope  Alexander  VII. 
preferred  to  promote  persons  of  good  birth,  because  he 
thought  that  as  princes  of  the  earth  like  to  be  served  by  in- 
dividuals of  high  families,  it  must  be  likewise  pleasing  to  the 
King  of  kings  to  be  served  by  priests  alresfdy  by  their  blood 
above  the  rest  of  men.  (Ranke,  Die  Rom.  Papste,  book  viii. 
§  lo,  vol.  ii.  p.  194  of  Amer.  ed.  of  Austin's  translation.) 

When  whole  kingdoms,  however,  had  become  Protestant, 
the  Jesuits,  for  the  first  time  in  history,  distinctly  pronounced 
the  sovereignty  of  the  people.  We  shall  see  how  they  were 
led  to  it.  It  was  now  for  the  Protestants  to  claim  the  entire 
independence  of  monarchs,  and  in  some  cases  they  went  to  a 
most  extravagant  idea  of  divine  right.  The  idea  that  wher- 
ever there  is  an  established  church  it  ought  to  be  under  the 
superintendence  of  the  state,  else  it  would  be  in  reality  a 
state  within  the  state,  and  a  contradiction  in  terms,  for  who 
establishes  ?  certainly  the  state,  by  which  is  given  already 
the  foundation  of  the  relation  in  which  both  must  stand — led 
the  Protestant  monarchs  to  declare  themselves  the  heads  or 
supreme  bishops  of  their  respective  national  churches.  It  led 
them  to  do  it,  though  it  is  by  no  means  necessary.  This, 
together  with  the  gradually  vanishing  power  of  the  pope,  as 
the  national  governments  rose  in  importance  and  power,  and 
as  the  stream  of  civilization,  industry,  and  consequent  strength 
passed  from  the  southern  European  nations  to  the  northern, 
was  a  cause  of  a  new  theory  of  the  divine  right  of  kings, 
and  unlimited  power,  which  from   the  times  of  Filmer  and 


SUPREME  POWER. 


249 


Wandalin  down  to  but  recent  periods  has  been,  at  times, 
pronounced  with  a  degree  of  absurdity  which  can  only  be 
accounted  for  by  all  the  surrounding  circumstances  of  the 
time,  and  is,  taken  without  them,  utterly  inconceivable.  This 
extravagance  is  rapidly  fading  away,  and  even  Chateaubriand 
asserted  in  one  of  his  speeches  in  the  chamber  of  peers,  after 
the  revolution  of  1830,  "I  do  not  believe  in  the  divine  right 
of  kings  ;  monarchy  is  no  longer  a  religion ;  it  is  a  political 
form."  The  duke  of  Fitz-James,  whose  political  views  were 
solely  formed  upon  the  antiquated  theories  of  French  royalty, 
himself  having  followed  the  Bourbons  into  their  exile,  and 
being  believed  to  have  stood  in  the  relation  of  consanguinity 
to  his  royal  master  Charles  X.,  waived  the  idea  of  divine 
right,  in  the  chamber  of  peers,  on  April  19,  183 1,  and  ap- 
pealed to  the  people,  with  a  view  td  establish  the  right  of  the 
duke  of  Bordeaux  to  the  French  throne.  Before  the  last 
revolution,  it  was  not  uncommon  among  the  French  royalists 
to  speak  of  a  ailte  de  la  monarchie,  meaning  a  veneration  ap- 
proaching to  worship  of  monarchy,  with  all  the  expressive 
symbols,  if  not  entire  worship.  We,  at  present,  must  care- 
fully distinguish  between  sovereignty  and  supreme  power, 
and,  though  etymologically  the  same  words,  we  have  as 
much  right  to  distinguish  between  them  as  between  royal 
and  regal,  and  so  many  similarly  related  terms, 

LXXV.  We  are  told  that  kings  are  of  God.  So  they  are, 
if  good,  and  where  monarchy  is  the  best  government  for  the 
given  circumstances ;  because  it  is  the  will  of  God  that  man 
should  live  in  a  state,  and  consequently  have  a  government. 
But  surely  the  people  are  of  God  too,  and,  what  is  more,  they 
are  ends  for  which  governments  are  but  a  means.  Nor  can 
it  be  seriously  maintained  that  every  monarch  that  ever  ruled 
has  been  such  by  the  special  direction  or  appointment  of  God. 
Was  every  Chinese  emperor,  every  sultan,  every  African 
king,  every  Indian  chief,  specially  appointed  by  divine  inter- 
position ?  They  are  not  civilized,  it  is  perhaps  objected. 
Were  Caligula  and  the  long  train  of  equally  insane  Roman 


250 


THE  STATE. 


emperors  of  God  ?  They  were  not  Christians.  Then,  was 
the  Austrian  h'ne  of  rulers  in  Spain,  was  the  Bourbon  line  in 
that  same  country,  of  God  ?  Why  should  v/e  pronounce 
blasphemies?  Were  James  and  Charles  I.,  with  their  Buck- 
ingham, of  God  ?  Were  Charles  II.,  Henry  VIII.,  lewd 
Elizabeth  of  Russia,  Charles  IX.  of  France,  Louis  XV.,  Pope 
Alexander  VI.,  was  the  lately  expelled  duke  of  Brunswick  in 
his  madness,  of  God  ?  He  was ;  but  so  are  wolves  in  the 
forest.  Was  Napoleon  of  God  ?  If  so,  when  did  he  begin  to 
be  so  ? 

If,  however,  the  expression  means  only  that  they  were 
monarchs  in  consequence  of  a  combination  of  many  laws  of 
the  universe,  then  it  means  nothing,  because  then  everything 
is  of  God,  and  we  need  not  assert  this  of  monarchs  especially. 
Nor  do  I  maintain  that  many  dark  pages  of  the  history  of 
the  people  cannot  be  mentioned :  all  I  desire  to  say  is,  that 
nothing  can  be  established  in  this  way.  If  there  is  anything 
mysterious  about  the  monarch,  something  by  which  sover- 
eignty is  personally  and  indelibly  attached  to  him,  then,  I 
repeat,  Charles  X.  must  have  taken  it  in  1 830  to  Holyrood 
Castle,  and  France  was  from  that  moment  incapacitated  to 
be  a  state  and  perform  all  necessary  acts  of  sovereignty.  Yet 
when  Louis  XVIII.  returned  to  France  in  18 14,  all  laws 
which  were  not  specifically  abolished  remained  in  force,  and 
even  the  pension  of  Robespierre's  sister  continued  to  be 
paid. 

Great  Britain  did  not  acknowledge  Napoleon  as  emperor ; 
yet  did  she  on  that  account  consider  Louis  XVIIL,  when 
residing  in  England,  as  sovereign  ?  Would  not  any  grand 
jury  have  found  a  true  bill  against  him  had  he  transgressed 
the  laws  ?  There  is  undoubtedly  some  indistinct  idea  that 
sovereignty  once  enjoyed  prevents  the  individual  from  ever 
becoming  an  entire  subject  again,  and  kings  who  abdicate 
continue  in  many  cases  to  enjoy  the  title  of  majesty  ;  but  I 
do  not  speak  here  of  matters  of  courtesy.  Christina  II.  con- 
sidered herself  still  a  sovereign  after  having  abdicated  the 
crown  of  Sweden,  and    her  execution   of  Monaldeschi  was 


LEGITIMACY.  2$  I 

founded  upon  this  idea.  With  her  the  notion  was  peculiarly- 
wrong,  because  she  acknowledged  her  successor.  She  cer- 
tainly therefore  could  not  be  sovereign  of  Sweden.  Of  what 
was  she  then  sovereign  ?  Was  she  sovereign  in  her  own 
person,  without  any  reference  to  any  country  ?  then  why  was 
she  not  sovereign  from  the  moment  of  her  birth,  rather  than 
when  her  father's  crown  devolved  upon  her?  Until  we  can 
find  individuals  who  are,  somehow  or  other,  sovereigns  within 
themselves,  without  reference  to  anything  without  them,  sov- 
ereigns of  themselves,  and  not  as  rulers  over  a  country,  we 
cannot  believe  in  the  sovereignty  of  persons. 

LXXVI.  If  there  is  a  legitimacy  personally  in  the  mon- 
arch, and  not  in  the  laws  willed  or  suffered  by  society,  then 
how  does  it  happen  that  England,  France,  Portugal,  Brazil, 
Sweden,  Holland,  Prussia,  Spain,  Russia,  Belgium,  Bruns- 
wick, are  ruled  by  monarchs  who  hold  the  sceptre,  or  rule 
according  to  fundamental  laws,  established  in  consequence 
of  revolutions,  or  have  seated  themselves  upon  the  throne  by 
force  ?  How  did  Russia  acquire  her  right  to  rule  ovr  the 
Cossacks,  who  were  severed  from  Poland  by  a  revolution  ? 
Yet  all  these  monarchs  considered  themselves,  and  generally 
are  considered,  lawful  rulers.^ 


^  The  government  of  England  was  settled  by  the  "  glorious  revolution  of  1688." 
The  present  dynasty  of  France  v^as  elevated  upon  the  throne  by  the  revolution 
of  1830.  The  house  of  Braganza  obtained  the  Portuguese  crown  by  the  revolu- 
tion of  1640  against  Spain,  when  John,  duke  of  Braganza,  was  made  King  John 
IV.  of  Portugal.  Brazil  was  raised  into  an  independent  empire  in  1822,  by  a 
revolution  which  declared  Don  Pedro,  son  of  the  king  of  Portugal,  first  emperor. 
In  Sweden,  a  revolution  in  1809  forced  Gustavus  IV.  to  abdicate  for  himself  and 
his  descendants.  His  uncle  Charles  XIII.  was  made  king,  and  when  the  elected 
crown  prince,  the  duke  Charles  Augustus  of  Augustenburg,  died,  in  18 10,  the 
French  marshal  Bernadotte,  Prince  of  Pontecorvo,  was  elected  crown  prince. 
He  ascended  the  throne  in  1818,  under  the  name  of  Charles  XIV.  John.  The 
reigning  house  in  the  Netherlands  are  the  descendants  of  the  great  William  of 
Orange,  the  Silent,  who  directed  the  revolution  of  the  Netherlands  against  Spain 
in  the  sixteenth  century.  Prussia  Proper,  which  became  the  foundation  of  the 
kingdom  of  Prussia  and  gave  it  its  name,  was  made,  in  1525,  a  hereditary  duke- 
dom by  the  revolution  of  Markgrave  Albrecht,  elected  master  of  the  Teutonic 


252  THE  STATE. 

There  must,  then,  be  something  beyond  them,  which  keeps 
them  in  those  high  stations ;  it  cannot  be  inherent.  It  is  the 
state,  which  is  infinitely  above  the  monarch,  which  can  see 
race  after  race  pass  away,  and  yet  remain  the  same.  Many 
enlightened  monarchs  have  well  penetrated  the  character  of 
their  office.  Frederic  the  Great  of  Prussia,  in  his  work  on  the 
Forms  of  Government,  calls  the  king  "the  first  servant  of  the 
state,  obliged  to  act  with  probity,  wisdom,  and  perfect  dis- 
interestedness, as  if  at  every  moment  he  should  give  account 
to  his  fellow-citizens."  (Frederic's  Works,  1788,  Berlin,  vol.  vi, 
page  84.)  He  speaks  repeatedly  of  the- fellow-citizens  of  the 
king ;  it  is  not  an  inadvertent  expression,  nor  an  over-modest 
one,  as  some  late  German  philosophers,  desirous  to  theorize 
the  mysterious  character  of  the  word  "  sovereign,"  have  called 
it.  Frederic  says  in  the  same  work,  "the  citizens  have 
granted  pre-eminence  to  one  of  their  equals  only,"  etc.  Joseph 
II.,  emperor  of  Germany,  and  hereditary  prince  of  the  whole 


order,  one  of  the  Catholic  orders  of  knights,  who  so  remarkably  united  the  char- 
acters of  conquering  knights  with  clerical  vows.  The  country  was  not  his,  nor 
the  government  hereditary.  He  became  Protestant  and  usurped  supreme  power. 
This  is  not  the  place  to  investigate  what  radical  changes  such  mighty  events  as  the 
Reformation  may  render  necessary  :  all  that  is  maintained  is  that  Albrecht  became 
duke  of  Prussia  by  high-handed  revolution.  (Stenzel's  History  of  the  Prussian 
States,  in  Heeren  &  Uckert's  Series,  Hamburg,  1830,  vol.  i.  page  292,  et  seq.) 

The  ruling  race  of  Spain  occupies  the  throne  in  consequence  of  conquest, 
for  the  decision  of  the  war  of  the  Spanish  succession  between  the  Bourbons  and  the 
house  of  Hapsburg,  in  favor  of  the  former,  can  hardly  be  called  anything  else. 
In  Russia,  Catharine  II.  made  herself  empress  by  a  revolution  against  her  hus- 
band Peter  III.,  who  was  killed.  So  was  Ivan,  who  had  the  next  claim  upon 
the  throne,  according  to  the  rules  of  hereditary  descent  of  crowns.  Her  son, 
Paul  I.,  was  deposed  and  killed  in  1801,  and  succeeded  by  Alexander  I.  In  the 
middle  of  the  seventeenth  century  the  Cossacks  revolted  against  Poland  and 
threw  themselves  into  the  arms  of  Russia,  to  which  empire  they  have  ever  since 
belonged.  Belgium  was  severed  from  the  kingdom  of  the  Netherlands  by  a 
revolution  in  1830,  and  constituted  into  a  kingdom,  calling  Prince  Leopold  of 
Saxe-Coburg  to  the  throne.  William,  the  reigning  duke  of  Brunswick,  succeeded 
by  a  revolution  in  1830  his  elder  brother  Charles,  who  had  committed  most  sur- 
prising extravagances,  illegal  acts,  and  cruelties,  acknowledged  as  such  by  the 
neighboring  governments  as  well  as  by  the  king  of  England,  who  repeatedly 
endeavored  to  bring  him  back  to  reason. 


MONARCHS  NOT  SOVEREIGNS. 


253 


Austrian  monarchy,  called  himself  the  first  subject  of  the  state. 
(Memoires  du  Prince  de  Ligne,  Paris,  1827,  vol.  i.  page  237.) 
He  knew,  too,  that  the  monarch  is  for  the  people,  not  the 
people  for  him.  When  on  his  death-bed  he  said  to  Prince  de 
Ligne,  a  native  of  the  Austrian  Netherlands,  which  just  then 
were  in  rebellion,  "  Go  to  the  Netherlands ;  make  them  return 
to  their  sovereign;  and  if  you  cannot  succeed,  remain  there: 
you  must  not  sacrifice  your  interests  to  me;  you  have  chil- 
dren." (Ibid.,  vol.  i.  page  236.)  Had  not  so  untenable  and 
undefinable  a  view  of  the  inherent  character  of  the  monarch 
been  taken,  man  would  never  have  thought  of  claiming  for 
him  a  position  above  the  law,  which  it  has  been  shown  he 
never  can,  in  reality,  occupy. 

There  have  always  been  flatterers  who  would  please  the 
ears  of  kings  with  these  ruinous  theories.  Anaxarchus  de- 
clared to  Alexander,  after  he  had  killed  Clitus,  "by  the  throne 
of  Jupiter  and  of  kings  sits  Themis  and  stamps  their  arbitrary 
will  into  what  is  right."  Even  without  a  veto  ?  Pliny's  sim- 
ple "  non  est  princeps  supra  leges,  sed  leges  supra  principem," 
can  never  be  obliterated  or  changed.  "  Nihil  aut  a^quius  aut 
tutius,  quam  ut  regnet  rex  secundum  leges  moresque  veteres." 
Grotius,  Epist,  pars  i.  ep.  1431,  dated  October  27,  1640. 

The  Romans  knew  the  difference  between  supreme  and 
sovereign  power  well.  "  The  granting  the  full  franchise," 
says  Niebuhr  (Roman  Hist,  vol.  ri.  page  299,  Amer.  ed.),  "to 
municipal  towns  was  so  strictly  deemed  an  act  of  the  sover- 
eign power,  that  the  tribunes  in  the  sixth  century  would  not 
so  much  as  allow  the  senate  the  right  of  proposing  it."  Who 
was  the  state  when  Philip  H.  of  Spain  declared,  upon  the  de- 
cision of  the  Inquisition,  that  all  the  inhabitants  of  the  Neth- 
erlands were  guilty  of  high-  treason, — that  those,  therefore, 
who  did  not  fall  under  the  executioner's  axe  enjoyed  their 
life  by  royal  grace  alone  ? '     Philip,  or  the  people  ? 

LXXVII.  Yet  the  monarch  of  Great  Britain  is  called  the 


»  Meterei^,  History  of  the  Netherlands,  folio  49. 


254  I'^E  STATE. 

sovereign,  and  various  maxims  in  the  British  constitutional 
law,  such  as,  "  the  king  can  do  no  wrong,"  "  he  is  the  fountain  of 
honor,"  "  every  British  subject  owes  indissoluble  allegiance  to 
him,"  seem,  at  first  glance,  to  express  something  of  that  power 
of  powers,  that  self-sufficient  source  of  all  power,  which  has 
been  designated  in  the  course  of  this  work  as  the  great  attri- 
bute of  sovereignty.  But  is  it  so  in  reality?  Are  the  maxims 
just  mentioned  substantial  truths,  that  is,  truths  on  which  we 
can  farther  build,  or  from  which  we  can  deduce  farther  truths 
as  binding  as  the  first  proposition,  or  are  they  rather  constitu- 
tional technicalities,  framed  and  worded  to  complete  a  system, 
to  give  it  that  logical  symmetry  which  gives  at  least  an  ap- 
parent finish  and  absoluteness  to  a  system,  and  for  the  sake  of 
which  we  find  that  in  all  the  fabrics  which  human  reason  has 
reared  in  the  various  theories  of  science  and  dogmatics,  men 
have  resorted  to  so  many  fictions  ?  The  difference  is  impor- 
tant, and,  unfortunately,  frequently  forgotten.  If  a  position  be 
a  truth  in  itself,  we  may  draw  legitimate  consequences  from  it ; 
if  it  be  an  illustration,  a  summing  up  of  what  has  been  stated 
by  way  of  simile,  then  we  must  stop  with  its  statement,  or  we 
shall  expose  ourselves  to  the  most  dangerous  argumentation. 
For  a  simile,  even  the  best,  carries  always  along  with  it,  not 
only  that  which  applies  to  the  given  case,  but  also  that  which 
does  not,  and  if  we  assume  the  simile  itself  as  full  and  com- 
plete truth,  the  latter  will  be  taken  to  be  ground  of  truth  as 
well  as  the  former. 

If  the  British  commentators  upon  constitutional  law  had 
always  used  the  word  crown,  instead  of  king  or  sovereign,  re- 
specting those  important  maxims,  the  danger  of  confounding 
the  king's  personality  with  his  political  authority  would  have 
been  avoided  in  a  great  measure.  Others  would  have  borne 
much  more  the  stamp  of  truth.  Thus,  it  is  said,  "the  king 
never  dies,"  while  it  is  meant  that  the  crown  never  dies,  or 
does  not  follow  the  head  which  wore  it  for  a  time  to  the 
tomb,  because  all  individuals  must  die,  all  hands,  even  those 
that  grasp  a  sceptre,  are  grasped  in  turn  by  the  cold  hand  of 
death,  but  Britain  dies  not.     The  crown  has  always  a  living 


BRITISH  MONARCH. 


255 


brow  to  support  it,  is  the  true  and  unparadoxical  meaning  of 
the  maxim,  "the  king  never  dies."  All  members  of  parliament 
must  die,  but  parliament  dies  not.  In  short,  "  the  king  never 
dies,"  means  that  the  chancery  does  not  die  with  the  chancellor, 
the  fleet  with  the  admiral,  the  bank  with  the  director,  the  city 
with  the  mayor,  the  people  with  their  ruler,  and  no  more. 

As  to  the  oath  of  allegiance,  I  have  treated  of  it  already. 
The  queen  Victoria,  in  some  of  her  late  communications  to 
the  two  houses,  respecting  the  Canadas,  speaks  of"  my  prov- 
inces," "  my  colonies."  Now,  there  is  probably  no  English- 
man living  who  would  pretend  that  the  pronoun  "  my,"  which, 
as  has  been  mentioned  in  a  previous  chapter,  is  used  to  ex- 
press an  infinite  variety  of  relations  between  two  persons  or 
persons  and  things,  expresses  in  this  case,  used  by  a  young 
lady  of  eighteen  years,  the  same  meaning  as  that  in  which  she 
applies  it  daily — for  instance,  to  household  articles.  The 
English  believe  not  only  that  monarchy  (not  "  surrounded  by 
republican  institutions,"  hwt  forming,  indeed,  to  all  intents  and 
purposes  a  great  republic ;  for  which  of  the  two,  George  III. 
and  Pitt  with  the  parliament,  was  substantially  the  ruler,  and 
which  became  the  executor  of  the  other's  v/ill  ?)  is  for  their 
given  circumstances  far  the  best  government,  but  also  that, 
upon  the  whole,  the  order  of  succession  by  which  females 
may  obtain  the  crown  in  default  of  male  issue  is  more  con- 
venient for  them  than  any  other  would  be ;  but  so  good  an 
authority  as  Dr.  Lushington  lately  said  in  the  commons,  with 
regard  to  a  suggestion  of  his  that  the  king  of  Hanover  might 
be  excluded  from  the  succession,  "  The  line  of  succession,  as 
well  as  the  constitution  itself,  was  framed  for  the  good  of  the 
people,  and  if  the  existing  law  ceased  to  be  operative  in  that 
respect,  then  it  came  for  the  consideration  of  parliament  what 
was  to  be  done."  (As  quoted  by  the  papers  of  the  day.)  The 
queen,  in  her  first  proclamation,  said,  "By  the  death  of  his 
majesty,  my  beloved  uncle,  has  devolved  upon  me  the  duty 
of  administering  the  government  of  this  empire.  This  awful 
responsibility,"  etc.  There  is  nothing  about  her  being  the 
owner  of  England ;  in  short,  she  succeeds  to  the  crown,  that 


256  THE  STATE. 

is,  to  supreme,  but  even  that  far  from  being  unlimited,  power. 
There  cannot  be  now  an  Englishman  who  pretends  to  maintain 
that  there  is  a  peculiar  quality,  called  sovereignty,  inherent  in 
the  monarch,  and  that  what  in  England  is  called  sovereignty 
is  essentially  something  founded  on  a  relation  between  the  in- 
dividual whose  brow  supports  the  crown  and  the  people. 
Startling  as  the  declaration  that  "  a  people  may  be  without  a 
king,  a  king  cannot  be  without  a  people"  (Journals  of  the 
Commons,  vol.  i.  p.  156)  may  have  been  for  some  persons 
under  James  I.,  it  is  now  too  well  established  a  truth  to  detain 
us  any  longer.  "  Do  not  imagine,"  wrote  Frederic  the  Great 
to  the  young  duke  of  Wiirtemberg,  who  had  been  educated 
under  his  eyes,  in  his  Monarch's  Mirror,  handed  to  the  duke 
on  the  day  of  his  departure  from  Berlin  (1744),  "that  Wiir- 
temberg exists  for  you,  but  believe  that  Providence  has  placed 
you  in  the  world  to  make  the  people  happy." 

I  have  seen  it  stated,  indeed,  that  the  schoolmaster  is  like- 
wise for  the  school,  and  not  the  school  for  the  teacher,  yet 
that  it  would  be  senseless  to  claim  for  the  children  the  right 
to  prescribe  rules  for  the  teacher.  All  that  is  to  be  answered 
is,  that  men  are  not  children,  and  children  not  men,  and  that 
there  exists  this  slight  difference,  that  the  children  without  a 
master  form  no  school,  but  the  people  without  a  monarch  are 
still  a  people,  and  that  that  which  makes  the  king  a  king,  the 
ruling,  may  be  done  sometimes  by  others  ;  or  have  the  Swiss, 
have  the  Americans,  had  all  antiquity,  no  governments  ?  Are 
we  all  lost  sheep  without  shepherds  ? 

According  to  the  principle  laid  down  in  this  work,  that  we 
must  learn  the  true  nature  of  a  thing  from  its  most  perfect  or 
most  developed  state,  and  not  from  its  incipient  stages,  still 
less  from  stages  of  corruption  or  violent  distortion  ("  Non  in 
depravatis,  sed  in  his  quae  bene  secundum  naturam  se  habent, 
considerandum  est  quid  sit  naturale."  Aristotle,  Polit.,  lib.  i), 
we  are  not  bound  to  go  to  the  most  distant  or  the  most  des- 
potic periods  of  English  history  in  order  to  understand  its 
true  character.  Yet  even  if  we  pursue  this  plan,  which  was 
the  one  that  Hume  proposed  to  himself,  we  shall  find  that 


BRITISH  MONARCH. 


257 


the  British  monarch  was  never  considered  as  possessing 
those  attributes  without  which  no  clear  idea  can  be  connected 
with  the  term  "sovereignty,"  as  has  been  successfully  shown 
by  Mr.  Brodie,  in  his  learned  History  of  the  British  Empire, 
especially  in  the  first  volume,  a  work  of  great  value  for  con- 
stitutional history.  As  to  the  later  times,  I  refer  the  reader  to 
Hallam's  Constitutional  History  of  England,  and  to  Black- 
stone,  i.  192,  et  seq.,  and  iv.  440.  I  shall  only  cite  here  p5rt 
of  a  law  of  25  Henry  VHI.,  c.  21,  from  Sir  Edward  Coke, 
copied  from  Brodie,  i.  286:  "Wherein  by  authority  of  parlia- 
ment it  is  enacted  and  declared  (directing  this  declaration  to 
the  king),  that  this  your  grace's  realm,  recognizing  no  supe- 
rior under  God  but  only  your  grace,  hath  been,  and  is,  free 
from  subjection  to  any  man's  laws,  but  only  to  such  as  have 
been  devised,  made,  and  ordained  within  this  realm  for  the 
wealth  of  the  same,  or  to  such  other,  as  by  sufferance  of  your 
grace  and  your  progenitors,  the  people  of  this  your  realm 
have  taken  at  their  free  liberty,  by  their  own  consent,  to  be 
used  amongst  them,  and  have  bound  themselves  by  long 
use  and  custom  to  the  observance  of  the  same,  not  as  to  the 
observance  of  the  laws  of  any  foreign  prince,  potentate,  or 
prelate,  but  as  to  the  customed  and  ancient  laws  of  this 
realm,  originally  established  as  law  of  the  same,  by  said  suf- 
ferance, consents,  and  customs,  and  none  otherwise." 

If  the  Declaration  of  Rights  of  1688  is  not  a  declaration  of 
the  sovereignty  of  society,  then  we  really  do  not  know  what 
the  instrument  means,  and  what  particle  of  right  to  the  crown 
William  and  Mary  ever  had.  But  it  is  asserted  by  tory  writers, 
for  instance  in  the  Book  of  the  Constitution  (Glasgow  and 
Edinb.,  1833,  p.  121),  that  had  the  British  possessed  the  right 
to  choose  their  own  governors,  "it  is  clear  that  the  English 
nation  did  at  that  time  (1688)  most  solemnly  renounce  and 
abdicate  it,  for  themselves  and  for  all  their  posterity  for- 
ever," because  a  subsequent  clause  of  the  Bill  of  Rights  says 
that  "  the  lords  spiritual  and  temporal,  and  commons,  do,  in 
the  name  of  all  the  people  aforesaid,  most  humbly  and  faith- 
fully submit  themselves,  their  heirs  and  posterity  forever," 

17 


258 


THE  STATE. 


etc.  Now,  the  question  is,  what  is  the  meaning  of  the  term 
"forever"  in  pohtics  ?  Has  it  an  absolute  meaning,  or  has  it 
only  a  meaning  under  and  within  that  sovereignty  which  is 
above  all  and  everything  ?  History  proves  that  the  latter  is 
the  case ;  else  there  could  hardly  be  an  organic  change  of 
any  government.  However,  I  waive  the  argument  which  lies 
in  the  total  want  of  right  in  one  generation  absolutely  to  bind 
another,  and  prove  my  point  from  the  Declaration  of  Rights 
itself  The  people  of  England  submitted  themselves  "  for- 
ever," that  is,  as  will  be  admitted,  on  the  terms  declared  in 
that  bill.  It  is  distinctly  expressed.  Now,  that  same  bill 
says,  in  paragraph  x.,  that  every  king  or  queen  shall,  on 
taking  the  coronation  oath,  "  make,  subscribe,  and  audibly 
repeat  the  declaration,"  mentioned  in  the  act  30  Charles  H., 
entitled,  "An  act  for  more  effectually  preserving  the  king's 
person  and  government,  by  disabling  papists  from  sitting  in 
either  house  of  parliament."  This,  too,  was  "  forever ;"  yet 
Catholics  do  sit  in  the  two  houses  since  1830,  despite  the  Bill 
of  Rights  itself;  and  it  was  a  tory  administration  under  which 
this  organic  change  took  place. 

This  paragraph  may  fitly  conclude  with  the  words  of  Lord 
Lansdowne,  spoken  after  he  had  been  premier,  on  December 
26,  1788,  when  the  regency  question  was  under  discussion  : 

"The  principles  laid  down  at  the  revolution  make  the 
crown  to  be,  not  descendible  property,  like  a  pig-sty  or  a 
lay-stall,  but  a  descendible  trust  for  millions  and  ages  yet 
unborn.  I  contend,  therefore,  that  the  hereditary  succession 
cannot  be  considered  as  a  right.  It  is  a  mere  political  expe- 
dient, capable  of  being  altered  by  the  two  houses.  In  cases 
of  exigence,  they  have  always  been  termed  the  legislature,  in 
order  to  prevent  the  greatest  of  all  possible  evils,  a  disputed 
succession." 

He  also  said,  "  The  people,  my  lords,  have  rights.  Kings 
and  princes  have  none.  The  people  want  neither  charters 
nor  precedents  to  prove  their  rights ;  for  they  are  born  with 
every  man  in  every  country,  and  exist  in  all  countries  alike, 
though  in  some  they  may  have  been  lost.     I  wish,  therefore, 


CAN  THE  KING   DO  NO    WRONG? 


259 


that  the  question  of  right  to  exercise  the  royal  authority, 
which  has  been  claimed  and  asserted,  may  be  decided ;  in 
order  that  those  who  sufifer  oppression  under  governmeiints  the 
most  despotic  may  be  taught  their  rights  as  men.  They  will 
then  learn  that  though  their  rights  are  not,  like  ours,  secured 
by  precedents  and  charters,  yet  as  soon  as  they  assert  their 
rights  they  must  be  acknowledged,"' 

LXXVIII.  The  king:  can  do  no  wronsf,  the  kinsr  is  the 
fountain  of  honor,  are  precisely  in  the  same  sense  true  and 
not  true,  as  the  preceding  maxim,  that  the  king  never  dies ; 
that  is,  they  are  fictions  or  metaphoric  expressions,  and  there- 
fore incapable  of  sustaining  any  argument  to  be  deduced 
from  them,  but  merely  expressing  an  idea  already  established, 
and  only  so  far  as  established.  Blackstone  distinctly  claims 
the  same  inability  of  doing  wrong  for  each  branch  of  the 
kgislature  (i.  244).  They  are,  then,  no  peculiar  attributes  of 
sovereignty,  using  the  term  as  applying  to  the  person  called 
by  the  English  law  sovereign.  Besides,  we  know  that  the 
king,  even  constitutionally,  can  do  wrong,  and  can  be  declared 
to  have  done  so,  as  was  the  case  in  the  Bill  of  Rights  re- 
specting James  II, ;  that  there  is  a  "  superiority  of  the  laws 
above  the  king"  (Blackstone,  iv.  440);  that  the  British  law 
"  confirms  the  doctrine  of  resistance  when  the  executive 
magistrate  endeavors  to  subvert  the  constitution"  (Ibid.). 
Everything  cnvi  grano  sails.  Even  the  Catholics  themselves, 
when  the  infallibility  of  the  pope  was  received  in  a  far  wider 
meaning  than  at  present,  asserted,  respecting  the  dispute  be- 
tween the  Jesuits  and  Jansenists,  that  the  pope's  infallibility 
cannot  extend  to  facts.  The  pope  had  declared  that  certain 
doctrines  were  damnable.  The  Jansenists  said  they  were  not 
contained  in  the  works  of  Jansenius,  upon  which  the  pope 
declared  those  damnable  doctrines  were  contained  in  the  work 
"  St.  Augustine"  by  Jansenius.  It  is  well  known  that  the 
pope  had  to  yield  in  a  considerable  degree.     It  is  certainly  a 


Wraxall,  Posthumous  Memoirs,  p.  467,  American  edit. 


26o  THE  STATE. 

very  curious  fact  in  the  history  of  constitutions  that  the  fun- 
damental law  of  the  kingdom  of  the  Netherlands  pronounces 
nowhere  the  irresponsibility  of  the  king  or  the  responsibility  of 
ministers,  but  according  to  paragraph  179  receives  "com- 
plaints against  the  king"  and  sends  them  to  the  supreme 
court,  and  that  this  constitution  was  drawn  up  by  the  king 
himself,  who  on  his  return  in  181 3  insisted  upon  being  made 
no  more  than  what  he  had  been,  stadtholder.  When  at  last 
he  was  obliged  to  yield  to  the  earnest  representations  of  the 
people,  he  consented  to  take  the  crown  on  condition  of  a  con- 
stitution which  should  "  protect  the  liberty  of  the  citizens 
against  all  possible  intrusions."' 

So  convinced  are  the  English  that  the  king  can  do  wrong, 
that  they  do  not  allow  him  to  do  anything  which  is  not  con- 
sidered as  having  been  advised  by  his  ministers,  so  that  there 
may  be  men  responsible  for  his  great  acts  f  and  on  the  other 
hand  tlT«  law  does  not  hear,  if  the  king  assures  on  his  honor 
that  certain  objectionable  acts  were  personally  ordered  by 
him,  as  was  the  case  in  Strafford's  trial.  No  one  shall  obey 
the  king  personally  and  individually,  but  only  politically,  sur- 
rounded by  the  law.  Whether  the  maxim,  the  king  can  do  no 
wrong  with  responsible  ministers,  be  a  well-contrived  expedi- 
ent, is  another  question.  I  consider  it  as  one  of  the  choicest 
productions  in  the  course  of  constitutional  history;  but  at  the 


'  Van  Campen,  History  of  the  Netherlands,  vol.  ii.  p.  581,  Heeren  &  Uckert's 
series,  Hamburg,  1833.     [Constit.  of  Aug.  24,  1815.] 

*  *  It  seems  that  even  the  prerogative  of  pardon  is  virtually  exercised  with  the 
advice  of  the  minister  for  the  home  department,  though  the  king  might  exercise 
it  alone.  Or  would  a  minister  resign  if  the  king  should  exercise  this  power 
without  advice?  We  find  passages  in  the  papers  like  this:  "  Lord  John  Russell 
has  refused  to  accede  to  a  petition  from  the  inhabitants  of  Canterbury  and 
Faversham  for  a  mitigation  of  the  sentence  of  transportation  on  the  three  men 
who  were  convicted  of  having  been  actively  engaged  with  Courtenay  when  he 
committed  the  two  murders."  (Galignani's  Messenger,  Oct.  I,  1838.)  The  pre- 
rogative of  pardon  of  tlie  British  monarch  is  constitutionally  limited,  so  far  as 
pardon  is  concerned,  in  cases  of  impeachment,  by  the  act  of  settlement,  which 
provides  that  no  pardon  under  the  great  seal  of  England  shall  be  pleadable  to  an 
impeachment  of  the  commons  in  Parliament.  [But  when  a  person  is  impeached 
and  found  guilty,  the  king  can  then  remit  the  sentence.] 


THE  KING  THE  FOUNTAIN  OF  HONOR.  26 1 

same  time  I  say,  with  Essex, "  What !  cannot  princes  err  ?  Can- 
not subjects  receive  wrong?  Is  an  earthly  power  or  authority 
infinite  ?  .  .  .  Let  them  (who  mean  to  make  their  profit  of 
princes)  acknowledge  an  infinite  absoluteness  on  earth  that 
do  not  believe  in  an  absolute  infiniteness  in  heaven."  (His 
letter  to  Lord-Keeper  Egerton,  in  Essex's  Original  Letters.) 

The  king  is  the  fountain  of  honor,  as  he  is  of  pardon,  that 
is,  as  he  is  king  altogether,  namely,  according  to  and  limited 
by  laws  ;  he  is  not  personally  the  fountain  of  honor.  No 
man  would  hesitate  to  receive  rather  the  "  thanks  of  parlia- 
ment" than  a  personal  mark  of  honor  from  the  monarch,  or 
even  an  order.  The  history  of  this  expression  must  probably 
be  sought  for  in  the  feudal  law,  in  which  a  barony  was  called 
an  honor;  the  honors  of  feudal  government  were  almost  if 
not  quite  all  annexed  to  the  seisin  and  possession  of  fiefs  or 
feuds,  which  were  all  holden  mediately  or  immediately  of  the 
crown.  So  that  saying  that  the  king  is  the  fountain  of  honor 
was  but  another  mode  of  saying  that  he  was  the  lord  para- 
mount of  the  soil.'  Hence,  when  in  process  of  time  the 
honorary  title  of  nobility  or  office  came  to  be  conferred  with- 
out the  simultaneous  grant  of  lands  to  support  it,  there  was 
no  occasion  of  any  change  of  phraseology,  though  the  import 
of  the  word  "honor"  had  become  somewhat  narrower  and 
less  substantial  than  before.  Real  political  honor  can  no  more 
be  bestowed  by  an  individual  than  worth.  It  is  society  on 
which  it  depends.  The  expression  therefore  amounts  only  to 
this,  that  the  monarch  is  the  pronouncer  of  honors,  and  only 
of  certain  ones,  for  doubtless  it  is  an  honor  to  sit  in  parlia- 
ment, which  the  king  does  not  bestow.     The  king  of  Prussia 


'  [Honor  (as  is  shown  by  Prof.  P.  Roth,  Gesch.  d.  Beneficialwesens,  p.  432) 
denoted  in  the  eighth  century  and  the  beginning  of  the  ninth  the  office  of  the 
official  person, — the  count,  for  instance,  who  was  usually  appointed  for  life,  hut 
his  betteficium  lapsed  when  the  king  who  had  bestowed  it  on  him  died.  From 
the  middle  of  the  ninth  century  honor  is  scarcely  to  be  distinguished  from  heite- 
Jicium,  that  is,  to  use  later  language,  from  ihefeudum,  or  fief.  When  the  feuda- 
tory had  count's  jurisdiction,  the  two  terms  were  necessarily  liable  to  confusion. 
When  this  ceased,  honor  denoted  title — nobility  with  the  political  precedence 
pertaining  thereto.] 


262  THE  STATE. 

made  General  Bliicher  prince  ;  the  people  called  him  Marshal 
Forward,  by  which  name  the  Germans  love  to  call  him  to  this 
day.  Which  was  the  greater  honor?  The  monarch  can  do 
nothing  but  pronounce  political  honor;  and  this  prerogative, 
therefore,  like  any  other,  belongs  to  his  political  character,  and 
proves  no  sovereignty,  for  it  would  always  be  a  second-hand 
sovereignty,  that  of  the  law  being  superior  to  it,  according  to 
the  commentators  of  the  land  themselves.  When  James  II. 
left  England,  was  the  fountain  of  honor  dried  up  ?  William 
III.  came  and  made  Bentinck  duke  of  Portland.  Napoleon 
founded  the  Legion  of  Honor;  it  did  not  follow  him  to  St. 
Helena,  but  Louis  XVIII.  became,  according  to  English 
phraseology,  its  fountain.  Charles  X.  left  France,  and  Louis 
Philippe  became  the  so-called  fountain.  Is  it  not  then  clear 
that  society,  the  state,  is  the  fountain,  and  the  respective 
monarch  merely  the  spout,  the  jet  d'eau  through  which  the 
well  of  honor  flows  ?  If,  therefore,  sovereignty,  as  we  have 
defined  it,  must  be  somewhere,  it  is  certainly  not  in  the  king 
that  we  are  to  find  it,  and  if  the  word  sovereign  is  never- 
theless applied  to  the  monarch,  it  means  nothing  more  than 
supreme  executive  power  within  and  under  the  constitution, 
which  comes  from  sources  of  superior  power. 

LXXIX.  It  would  certainly  be  unwise  in  any  British  poli- 
tician to  struggle  for  a  change  of  the  monarch's  title,  or  that 
in  future  he  should  be  called  King  of  the  English,  and  not 
of  England,  as  long  as  no  party  assumes  these  words  as  a 
foundation  to  rest  important  claims  upon;  simply  because 
it  would  be  a  waste  of  energy,  while  the  substance  has  been 
already  obtained.  That,  however,  monarchs  of  civically  de- 
veloped nations  are  the  monarchs,  i.e.  chief  magistrates,  of 
the  people,  and  not  the  monarchs  of  the  soil,  w^ill  have  suffi- 
ciently appeared.  In  France  the  change  of  the  title  was  im- 
portant, because  it  was  meant  to  indicate  a  change  of  things. 
By  the  first  constitution  (of  1791)  the  king  was  styled  King 
of  the  French  (ch.  ii.  sect.  i.  2) ;  Napoleon  was  styled  Emperor 
of  the  French.     When  Louis  XVIII.  ascended  the  throne  in 


TITLES  OF  THE  KING.  263 

1 8 14,  he  re-assumed  the  old  title  of  King  of  France  and  Na- 
varre ;  but  in  1830,  upon  the  expulsion  of  Charles  X.,  the  title 
of  King  of  the  French  was  re-established.  Those  who  have 
endeavored  to  ridicule  this  idea  as  a  modern  fancy  err  greatly.' 
I  repeat,  as  to  mere  correctness,  there  can  be  no  doubt  that 
this  is  the  true  title,  in  the  eye  of  all  who  consider  the  king 
as  part  of  and  within  the  government  of  the  country. 

'  Mary  Queen  of  Scots.  Philip  IV.  (1285-1314)  styles  himself,  writing  to 
Pope  Boniface,  Roi  des  Francois.  (Chateaubriand,  Etudes  historiques,  vol.  iii. 
p.  331.)  An  engagement  between  Philip  II.  of  France  and  Richard  I.  of  England 
was  signed  thus:  "  Moi  Philippe,  roi  des  Fran9ois,  envers  Richard,  mon  ami  et 
mon  fidele  vassal :  Moi  Richard,  roi  des  Anglais,  envers  Philippe,  mon  seigneur 
et  mon  ami."  (Biog.  Universelle,  vol  xxxix.  p.  94.)  Gustavus  Adolphus  styled 
himself  "  by  the  grace  of  God  chosen  and  hereditary  prince  of  the  Svredes, 
Goths,  and  Wends."  (Zober,  Unprinted  Letters  of  Wallenstein  and  Gustavus 
Adolphus,  Stralsund,  1830.)  The  instances  might  be  greatly  multiplied.  In 
Latin  the  king  of  Prussia  is  styled  Rex  Borussorum,— analogous  to  the  ancient 
Rex  Romanorum.  And  yet,  in  1655,  during  the  transactions  between  Cromwell 
and  Louis  XIV.,  the  French  ambassador  complained  that  Louis  had  been  called 
"  rex  Gallorum,"  instead  of  "  rex  Gallias."     Thurloe,  State  Papers,  iv.  107. 


CHAPTER     VII. 

Public  Power. — Why  necessary. — Why  must  it  be  restrained  ? — Abuse  of  Power 
general.— Man  justly  loves  to  act,  to  produce,  to  effect  something.— It  is  the 
inherent  Character  of  all  Power  to  increase  if  unchecked.— Powe  rdelights,  and 
is  not  willingly  given  up. — Power,  in  all  Men  and  all  Spheres,  is  irritated  at 
Opposition. — Man  judges  according  to  his  Position,  those  in  Power  differently 
from  those  out  of  it. — Power  is  in  its  Character  imposing. 

LXXX.  The  state  stands  in  need  of  power  for  its  govern- 
ment, or  organism  through  which  it  obtains,  or  strives  to  ob- 
tain, the  state  objects.  Let  us  call  it  public  power.  Public 
power  may  rest  on  a  moral  basis  :  for  instance,  people  obey  a 
law  because  it  is  a  law,  not  because  a  penalty  is  attached  to 
it.  In  the  year  1836,  the  members  of  the  South  Carolina 
legislature  resolved  unanimously,  in  a  caucus,  to  throw  away 
the  presidential  vote,  or  to  vote  for  an  imaginary  person, 
because  they  were  not  satisfied  with  either  candidate.  When, 
however,  the  vote  was  to  be  taken  upon  this  preliminary  reso- 
lution, it  was  suggested  that  the  constitution  of  the  United 
States  says  (art.  ii.  sect,  i,  3)  that  the  electors  "shall  vote  by 
ballot  for  two  persons."  The  legislature,  therefore,  found 
themselves  bound  to  vote  for  some  actual  citizen  or  other,  and 
gave  their  vote  for  Mr.  Mangum,  who  was  no  candidate.  It 
was  a  purely  moral  act. 

In  former  times,  the  citizens  of  Hamburg  contributed  their 
quota  of  taxes,  unseen  and  uncounted,  after  the  general  sum 
had  been  granted. 

Or  government  may  have  the  right  to  bestow  honors  and 
thereby  exercise  power.  Or  public  power  may  rest  on  a 
physical  basis, — for  instance,  when  the  constable  with  his 
assistants  carries  off  a  person,  or  government  sends  soldiers 
to  enforce  obedience.  Or  it  may  rest  on  a  basis  of  a  mixed 
character, — for  instance,  on  the  pecuniary  means  at  the  disposal 
264 


PUBLIC  POWER.  265 

of  government.     Pecuniary  reward  cannot  be  strictly  called 
physical  or  moral. 

Power  and  authority  are  promiscuously  used  in  politics. 
Authority  is  the  lawfully  bestowed,  or  by  common  consent 
acknowledged,  right  of  performing  certain  public  acts.  The 
supposition  is  that  where  this  right  exists,  the  power  to  make 
use  of  it  exists,  and  hence  the  promiscuous  use  of  the  two 
terms.  Thus,  the  constitution  of  the  United  States,  art.  i. 
sect.  8,  says,  "  the  congress  shall  have  power,"  etc.  We  have 
seen  already  that  all  power  must  originally  rest  upon  a  moral 
basis,  although  not  indeed  in  each  individual  case. 

LXXXI.  Why  does  the  state  want  power  for  its  govern- 
ment ?     Because : 

I.  Man  is  a  physical,  intellectual,  and  moral  individual  of 
himself,  and  must  remain  so.  His  worth  and  value  depend 
upon  it;  and  yet  he  is  bound  to  live  in  society,  and  this  so- 
ciety must,  according  to  the  great  plans  of  the  Creator,  move 
from  one  stage  of  civilization  to  another.  Both  require  an 
infinite  variety  in  the  combination  of  the  elements  which  con- 
stitute the  inner  man,  and  infinite  changes  of  his  social  rela- 
tions, of  which  an  infinite  variety  of  character,  desires,  views, 
and  actions  is  the  necessary  consequence  and  indeed  the 
object.  Astonishing  as  the  power  of  combining  throughout 
the  rest  of  the  creation  may  appear  to  us,  in  man  it  operates 
most  surprisingly.  Animals  can  live  in  large  numbers  to- 
gether without  many  jarring  interests  ;  enormous  herds  of 
buffaloes  graze  together  and  rarely  fight  with  one  another, 
because  their  individuality  is  a  merely  physical  one ;  they  all 
move  simply  according  to  the  food  they  find.  It  has  been 
very  erroneously  supposed  that  the  interests  of  men  cross 
each  other,  and  that  consequently  governmental  power  is 
requisite  merely  on  account  of  man's  sinfulness.  It  is  one  of 
the  first  principles  of  mankind  that  infinite  variety  should 
exist.  Without  it  all  would  stagnate.  This  variety  must 
lead  to  different  views,  not  only  according  to  men's  wicked- 
ness, but   because  they  are  finite  beings.      Infinite  wisdom 


266  THE  STATE. 

alone,  omniscience,  can  penetrate  the  essence  of  all  things 
and,  consequently,  their  essential  relation  to  one  another. 
Though  no  citizen  were  ever  actuated  by  selfishness,  still, 
power  for  the  government  would  be  necessary,  in  order  to 
protect  the  jural  relations  of  the  citizens,  each  one  of  whom 
can  only  see  and  feel  first  through  himself  Each  man, 
first  of  all,  is  the  key  through  which  he  has  to  understand 
that  which  is  around  him.'     The  variety  of  pursuits  and  de- 


'  Let  me  not  be  misunderstood  as  if  I  were  in  any  the  slightest  degree  an  ad- 
vocate of  the  theory  of  selfishness  or  egotism,  but  lately  prevalent  in  some  coun- 
tries. There  is  nothing  more  baneful  to  society  than  the  corroding  spirit  of  egotism, 
I  have  given  my  view  on  the  importance  of  sympathy,  in  several  previous  pas- 
sages; still,  it  must  not  be  forgotten  that  man  cannot  by  any  possibility  see  through 
other  eyes  than  his  own,  feel  through  another  heart  than  his  own.  He  begins 
even  with  regard  to  his  feelings  for  others  from  the  circle  around  him.  Your 
neighbor's  father  dies;  you  feel  strongly  for  him,  for  you  know  what  you  felt 
when  your  own  departed.  Your  neighbor's  son  breaks  his  arm ;  you  feel  strongly, 
yet  differently  from  what  you  did  when  your  own  son  was  brought  home  covered 
with  blood.  That  which  happens  in  my  sight  affects  me  more  than  that  of 
which  I  only  hear.  Great  miseiy  in  the  street  in  which  I  live  goes  more  di- 
rectly to  my  heart  than  misery  at  a  greater  distance.  The  distress  of  the  Spital- 
fields  or  Lyons  weavers  is  read  by  no  one  without  commiseration  and  lively  feel- 
ing, yet  the  distress  in  our  country,  our  own  slate,  community,  street,  house, 
affects  us  more,  in  the  same  degree  in  which  the  circle  narrows.  The  account 
that  the  maids  of  honor  of  Queen  Catherine  of  France  tore  the  clothes  from  the 
corpse  of  Baron  Soubise,  slain  with  so  many  other  noblemen  in  the  royal  palace 
during  the  massacre  of  St.  Bartholomew,  and  made  themselves  merry  at  the 
spectacle  while  his  blood  was  yet  streaming  from  his  wounds  (Aubigne,  ii.  546; 
Lacretelle,  ii.  352),  or  that  Caesar  Borgia,  having  successively  murdered,  with 
dagger  or  poison,  his  own  brother,  brother-in-law,  and  hundreds  of  victims  to  his 
lust  of  power  or  desire  for  money,  killed  Peroto,  the  favorite  of  Pope  Alexander 
VI.,  Ccesar's  father,  while  his  victim  had  sought  protection  under  the  pontifical 
robe,  and  the  pope  pleaded  for  him,  so  that  the  blood  of  the  favorite  gushed  into 
the  face  of  the  pontiff,  and  that  Ccesar  went  forth  unpunished  (Ranke,  Princes 
and  Nations  of  Southern  Europe,  Berlin,  1834,  vol.  ii.  p.  50,  where  all  the 
Italian  authorities  are  given)— these  accounts  affect  us,  however  intense  our  feel- 
ings at  all  the  loathsome  crime  may  be,  far  differently  from  any  act  of  less 
criminality  which  may  occur  in  our  own  community.  There  is  always,  and 
necessarily  must  be,  an  essential  difference  between  the  effect  of  anything  which 
affects  us  in  a  general  way  only,  and  that  in  which  we  are  personally  interested. 
If  it  were  not  so,  the  world  would  be  in  the  greatest  confusion.  Every  one 
would  make  the  cause  of  every  one  his  own.  Who  could  read  a  single  news- 
paper without  being  rendered  wretched  almost  for  life  ?     Or  could  we  feel  any 


PUBLIC  POWER.  267 

sires,  of  views  which  incline  more  either  to  that  which  has 
been  and  exists  or  to  that  which  is  expected,  cause  actions 
which  intercept  and  contradict  one  another.  A  very  large 
number  of  all  civil  law  cases  originate  neither  from  insufficient 
laws,  nor  from  the  evil  designs  of  the  parties,  nor  even  from 
their  litigious  spirit,  but  because  both  believe  they  are  right 
and  that  it  is  their  duty  to  maintain  their  right.  If,  then, 
every  man  shall  have  his  due,  how  can  it  be  otherwise 
done  than  by  a  higher  authority  and  power  to  sustain  the 
authority  ? 

2.  The  state,  through  its  government,  must  protect  each 
citizen  against  any  violation  of  his  rights  by  wrong-doers 
within  or  enemies  without. 

3.  The  state,  as  a  whole,  must  maintain  and  protect  itself 
from  evil  designs  against  its  existence  from  within,  and 
attacks  upon  its  independence  from  without. 

4.  The  state,  a  jural  society,  must  maintain  its  character  as 
such.  It  must  punish  violations  of  rights,  not  only  with  a  view 
of  individual  protection  (mentioned  above,  2),  but  also  to 
maintain  its  own  character  as  the  society  of  right.  Without 
punishment  of  offences,  the  state  would  lose  its  essential 
character,  and  society,  therefore,  could  no  longer  exist  and 
pursue  its  ends  as  society.  The  state  acquires  the  right  to 
make  use  of  its  punitory  power  against  offenders  by  the 
offence  committed  against  it,  that  is,  by  each  infraction  of  the 
law,  and  it  is  its  duty  to  do  so  wherever  the  general  protec- 
tion, physical  or  moral,  requires  it.  By  moral  protection  I 
mean  that  which  exists  in  the  maintenance  of  the  character 
of  the  state,  i.e.  a  society  of  right.  Rights  exist  between 
moral  beings  only;  animals  have  no  rights.  The  state  pro- 
tects against  offences  both  in  a  psychologic  way,  by  affixing 
beforehand  a  punishment  to  every  offence — by  warning  every 


longer,  at  all,  if  all  the  joyous  events  and  sad  occurrences,  past  and  present,  were 
to  excite  our  interest  as  much  as  our  own  ?  In  this  necessary  order  of  things, 
too,  we  have,  as  alluded  to  in  a  previous  passage,  to  look  for  one  of  the  deep 
sour.es  of  patriotism. 


258  THE  STATE. 

one;  in  doing  so,  it  leaves  every  one  free;'  and  in  a  physical 
way,  after  the  offence,  notwithstanding  the  penalty,  has  been 
committed. 

5.  One  of  the  main  state  objects  is,  as  has  been  seen,  the 
obtaining  jointly  that  which  is  necessary  for  society  and  can- 
not be  obtained  by  individual  exertion — to  obtain  publicly 
what  cannot  be  obtained  privately.     This,  too,  requires  power, 

LXXXII.  Why  must  public  power,  if  once  granted,  be 
carefully  watched,  modified,  retarded  ?  Because  public  power 
is  not  a  physical  power  which  can  be  either  expressed  or  lim- 
ited with  absolute  definiteness.  The  "vessel  of  the  state"  is 
not  a  steamboat,  of  which  we  can  say  it  sails  with  so  much 
horse-power.  Public  power  is  finally  always  founded  upon 
confidence.  Make  a  law  ever  so  definite,  circumscribe  the 
limits  of  power  which  you  grant,  with  ever  so  much  care, 
you  must  repose  confidence  in  him  who  has  finally  to  carry 
out  that  law  —  the  confidence  of  common  sense  and  moral 
sense.  Confidence,  not  indeed  unlimited  confidence,  must  be 
the  last  vital  spark  which  makes  a  prescribed  action  a  living 
thing.  The  claim  of  confidence,  so  continually  proffered  by 
James  I.  and  Charles  I.,  was  not  wrong  in  principle;  the  diffi- 
culty lay  in  the  degree  of  confidence  they  claimed,  and  both 
showed  themselves  unworthy  of  a  far  less  degree.  All  the 
wisdom  of  government  depends  upon  a  proper  balance  be- 
tween confidence  and  distrust.  Confidence,  then,  is  indispen- 
sable ;  but  this  confidence  will  be  abused.  Why  ?  Because 
he  who  has  power,  whoever  he  or  they  may  be,  king,  ministers, 
nobles,  commons,  clergy,  soldiers,  the  people,  abuse  it.  Po- 
lybius,  the  first  who   reduced  the  idea  of  a  circle  of  political 


'  Feuerbach,  Manual  of  Penal  Law,  loth  ed.,  parag.  10  et  seq.  T^Iy  views  ol 
the  punitory  power  of  the  state,  or  the  primordial  rigl;it  of  punishment,  and  the 
duty  of  punishment,  as  well  as  on  various  other  subjects  relating  to  these,  have 
been  given  in  a  popular  Essay  on  Subjects  of  Penal  Law,  and  on  Uninterrupted 
Solitary  Confinement  at  Labor,  as  contradistinguished  from  Solitaiy  Confinement 
at  Night  and  Joint  Labor  by  Day,  printed  by  order  of  the  Philadelphia  Society 
for  Alleviating  the  Miseries  of  Public  Prisons,  Philadelphia,  1838. 


LOVE  OF  POWER.  269 

changes,  namely,  monarchy,  aristocracy,  democracy,  which 
changes  again  into  monarchy,  to  a  system,  founds  already  the 
necessity  of  these  changes  upon  the  degeneracy  consequent 
to  the  abuse  of  public  power  in  each  form  of  government. 
(Lib.  vi.  c.  3,  seq.)  Why  is  this  the  case?  For  the  following 
reasons : 

I.  Republicans  complain  of  the  abuse  of  power  practised 
by  monarchs,  their  ministers,  lords,  commanders;  and  yet 
each  complainant  carries  within  himself  the  germ  of  a  despot, 
and  abuses  power  proportionately  within  his  sphere  as  much 
as  the  others  in  theirs.  The  monarchs  are  men  of  the  same 
organization  with  ourselves.  Each  party  that  is  out  com- 
plains of  abuse  of  power  in  that  which  is  in.  Are  then  all 
these  complaints  mere  declamation  ?  They  are  not.  If  so, 
the  abuse  of  power  must  be  founded  on  some  natural  principle 
within  us,  and  its  origin  need  not  be  bad.  It  must  be  bad  on 
account  of  insufficient  restraint.  Let  us  trace,  then,  the  origin 
of  this  phenomenon. 

The  love  of  power  is  not  necessarily  bad  in  its  origin.  It 
is  closely  connected  with  what  I  should  like  to  call  the  desire 
or  urgency  of  action,  an  original  principle  of  essential  impor- 
tance. Where  power,  energy,  or  any  faculty  for  action  and 
activity  (^ova/i;?)  has  been  given,  there  exists  likewise  an  in- 
tense desire  to  exercise,  practise,  apply  it.  Such  is  its.  very 
nature,  and  without  it  the  world  would  be  at  a  stand.  Whatever 
we  may  undertake  originally  by  way  of  interest,  the  love  of 
activity,  the  desire  to  leave  some  memorial  of  one's  self,  to 
produce  and  effect  something,  soon  supersedes  it.  Does  the 
merchant  carry  on  his  business  in  order  to  obtain  a  certain 
sum  and  then  to  stop?  Or  does  he  continue  his  operations 
even  when,  whatever  the  increase  of  his  fortune  may  be,  he 
cannot  expect  to  live  thereby  more  comfortably,  give  a  better 
education  to  his  children,  or  a  surer  prospect  of  independence 
to  his  wife,  should  he  leave  her  a  widow  ?  It  is  not  ambition 
alone  that  may  prompt  him.  There  are  many  rich  merchants, 
neither  ambitious  nor  avaricious,  who  yet  remain  in  busmess, 
and  the  community  praises  them  for  continuing  it.     Why  do 


270 


THE  STATE. 


nearly  all  men  love  farming  in  the  evening  of  their  lives,  when 
they  are  excluded  from  the  busier  spheres  of  life  ?  Nearly  all 
"  retired  men,"  merchants,  lawyers,  politicians,  princes,  love 
farming.  Because  in  farming,  though  it  is  calm  in  its  nature 
and  therefore  suitable  to  their  situation,  they  still  produce,  act 
perceptibly  to  their  own  eyes,  and  they  prove  to  themselves, 
by  that  which  surrounds  them,  that  they  are  still  acting 
beings.  Does  the  orator,  who  feels  and  sees  that  he  wields 
power  by  his  word  of  mouth,  merely  speak  for  the  sake  of 
usefulness,  or  does  that  peculiar  delight  which  a  sound  and 
energetic  speaker  necessarily  derives  from  the  consciousness 
that  he  exercises  a  mighty  power  over  his  hearers,  strongly 
commingle  with  it  ?  Did  Fulton  never  think  of  anything  else 
but  of  benefiting  his  fellow-creatures,  or  was  he  strongly  pro- 
pelled by  the  pressing  desire  for  activity  and  the  application 
of  that  power  which  nature  had  given  him,  and  the  delight 
which  the  soul  always  feels  in  the  activity  of  its  powers, 
capacities,  talents,  whatever  name  they  may  have?  What 
prompts  an  Ehrenberg  to  study  the  structure  and  vital  organ- 
ization of  insects  in  the  burning  clime  of  Egypt?  Is  it  utility? 
What  impels  every  votary  of  science  to  pursue  his  toilsome 
paths  ?  Is  it  interest?  Is  it  utility  alone,  or  chiefly  ?  or  is  it 
the  delight  which  the  human  mind  feels  in  the  consciousness 
of  activity?  "  Omnis  enim  scientia  et  admiratio  (quse  est 
semen  scientiae)  per  se  jucunda  est,"  says  Bacon.  (De  Aug- 
ment. Scientiarum,  lib.  i.)  And  what  is  this  admiration  but 
the  delight  of  intense  activity  and  consciousness  of  the  power 
and  penetrating  or  combining  action  of  our  mind?  What 
prompts  the  true  poet  ?  Was  the  first  idea  of  Shakspeare  to 
delight  his  fellow-men,  or  was  it  the  yearning  of  his  august 
genius  to  act,  to  manifest — to  exteriorize  itself,  without  which 
genius  is  a  burning  fever?  What  leads  the  painter, the  sculp- 
tor, to  produce?  Was  Columbus  induced  to  sail  into  unknown 
seas  only  by  the  desire  of  obtaining  means  to  drive  the  Sara- 
cens from  Palestine,  as  he  himself  believed,  or  did  he  wish 
to  obtain  these  means  because  his  exalted  mind  urged  him 
necessarily  to  act  ?     The  nobler  the  mind,  the  more  endowed 


ABUSE   OF  POWER.  271 

the  soul,  the  more  intense  also  the  thirst,  the  more  pressing 
the  anxiety  to  act,  to  produce,  to  exert  our  powers — to  im- 
print our  mind  on  the  world  without.  It  is  indifferent  what 
name  we  give ;  our  language  has  no  term  which  expresses 
with  one  word  the  Greek  5waa>'^ai,  tzouIv,  the  German  schaffen 
and  zvirkcn;  but  what  I  mean  to  convey  is  what  the«e  words 
express  in  their  respective  languages. 

The  love  of  power,  therefore,  is  intimately  connected  with 
a  principle  in  the  soul,  by  which  man  is  stamped  more  as  the 
image  of  his  Creator  than  by  any  other. 

The  love  of  power  is  a  higher  degree  of  the  love  of  activity, 
which  is  found  everywhere  in  men.  All  absence  of  activity 
pains  us.  We  find  it  in  all  spheres,  from  the  common  cutting 
in  wood  or  writing  in  sand  to  the  grandest  self-sacrifices  in 
the  scholar,  who,  like  Leibnitz,  knows  he  will  die  early  if  he 
perseveres  in  his  studies,  but  still  prefers  a  short  life  of  intense 
thought  to  a  long  one  of  repose.  This  love  of  activity  is  also 
closely  connected  with  ambition,  on  which  see  the  proper 
chapter, 

LXXXIII.  2.  It  is  likewise  the  character  of  power,  phys- 
ical, mental,  political,  and  moral,  that  it  goes  on  increasing, 
if  not  counteracted.  Indeed,  it  is  the  essential  attribute  of 
power  that  unchecked  it  will  go  on  increasing. 

3.  The  delight  in  the  exercise  of  power,  combined  with  the 
frailty  of  man,  produces  this  effect,  that  few  who  have  power 
are  willing  to  give  it  up.  Whether  in  the  people  or  the  mon- 
arch, power  is  a  bewitching  thing.  There  have  been  mon- 
archs,  indeed,  who  have  abdicated,  as  Charles  V.,  emperor  of 
Germany,  and  Diocletian  of  Rome,  but  as  long  as  they  had 
power  did  they  not  remove  everything  in  its  way  ?  I  do  not 
say  that  there  may  not  be  inducements  still  more  urgent  to 
give  it  up.  Others,  as  the  elector  Frederic  of  Saxony,  declined 
the  German  crown.  But  there  is  at  times  a  great  difference 
between  a  crown  and  power. 

When  Holland  was  engaged  in  that  glorious  struggle  with 
Spain,  in  which  thousands  of  deeds  were  performed,  by  men 


2/2  THE  STATE. 

and  women,  which  are  hardly  equalled  by  the  Greeks  in  the 
Persian  wars,  when  the  whole  people  were  animated  by  in- 
spiring enthusiasm,  when  William  of  Orange  was  at  the  height 
of  his  popularity,  when  the  inhabitants  of  the  country  as  well 
as  the  cities  had  to  contribute  all  they  could  spare  to  defray 
the  exhausting  expenses  of  the  war,  even  then  that  great  man 
could  not  induce  the  cities  of  Holland,  in  1573,  to  admit 
among  their  large  number  of  representatives  at  least  three 
from  the  country,  though  the  farmers  of  northern  Holland 
alone  bore  two-thirds  of  the  public  charges.  They  had  not  a 
single  member  in  the  states. 

How  long  did  the  English  parliament  resist  all  the  fairest 
measures  of  reform,  even  though  Pitt  advocated  them !  The 
Spanish  cortes  in  18 12  would  allow  Mexico  no  representation; 
Portugal  behaved  similarly  towards  Brazil.  How  many  acts 
of  crying  injustice  are  recorded  of  Athens  against  those  who 
depended  upon  her  as  allies  !  As  soon  as  the  various  re- 
ligious sects  after  the  Reformation  had  obtained  what  they 
wanted,  nearly  all  of  them  denied  the  same  to  others.  In 
short,  whoever  gets  in  likes  to  lock  the  door  behind  him. 

4.  It  is  a  psychological  truth,  that  all  power,  however  law- 
ful, being  resisted,  the  first  feeling  in  those  intrusted  with  it 
is  not  that  of  regret  at  this  resistance,  on  account  of  the  object 
they  had  in  view,  but  of  offence  at  the  opposition  itself  This, 
again,  is  not  peculiar  to  one  set  of  men  or  class  of  society,  but 
without  exception  true  of  all.  Monarchic  power  is  not  more 
offended  at  resistance  than  democratic  or  parental  power. 

Many  a  father  who  complains  of  public  functionaries  on  ac- 
count of  their  love  of  power  forgets  to  ask  himself  at  what  he 
feels  offended  when  his  child  is  disobedient;  because  it  dis- 
obeys a  wise  rule  he  has  given  ?  or  because  it  is  disobedient 
and  therefore  acts  wrong  ?  or  because  it  has  disobeyed  what 
the  father  had  ordained?  The  severity  of  all  early  penal  laws 
arose  from  this  source.  The  idea,  the  feeling,  was,  "  You 
have  dared  to  disobey  my  power,  you  have  rebelled  against 
my  authority,"  not,  "  You  have  offended  against  society,  acted 
wrong,  because  my  authority  is  for  the  common  good." 


ABUSE   OF  POWER.  273 

This  is  likewise  the  case  when  we  are  justly  opposed;  for, 
whatever  may  be  the  ground  of  opposition  to  us,  and  though 
we  may  have  a  pretty  distinct  perception  of  the  right  of  the 
opposer,  the  first  feeling  is  the  desire  of  overcoming  the  op- 
position. Few  men  indeed  are  ever  opposed  without  at  the 
first  moment  having  the  feeling  of  being  wronged;  and  this 
extends  even  to  the  most  atrocious  criminal.  And  as  the  in- 
dividual, so  the  body.  Whoever  wields  the  public  power  feels 
irritated  by  opposition,  be  it  ever  so  peaceful  or  loyal.  Power 
therefore  would  overcome  everything  in  its  way,  if  not  modi- 
fied, or,  which  is  the  best,  if  not  generated  in  a  manner  which 
insures  the  least  possible  danger.  This  jealousy  of  opposition 
is  frequently  increased  by  a  consciousness  of  greater  weakness 
than  the  possessor  of  power  wishes  to  have  others  know,  or 
by  a  suspicion  that  new  or  delegated  power  may  not  be  ac- 
knowledged to  the  full.  Alva  decreed,  July  31,  1571,  after 
much  debate  and  opposition  in  his  own  council,  a  most  hate- 
ful law,  and  farther  declared  that  the  honor  of  the  king  de- 
pended upon  him,  and  that  every  one  who  opposed  him  was 
a  fool  or  a  traitor.  (Raumer,  Letters,  etc.,  i.  179;  Thuanus, 
lib.  20.)  The  correspondence  of  Strafford  and  Laud  exhibits 
the  same  principles. 

5.  Man  judges  first  according  to  his  own  perceptions,  and 
it  requires  great  skill  and  much  honesty  to  view  matters  in 
the  light  of  others.  (See  the  previous  section  and  note.)  If 
I  feel  oppressively  warm,  I  say  the  weather  is  warm,  and 
believe  all  must  feel  oppressed,  until  I  have  learned  that  my 
body  may  be  in  a  state  in  which  a  comparatively  low  tem- 
perature may  produce  the  sensation  of  a  very  high  one. 
Those  in  power  can  but  with  difficulty  see  things  from  above 
as  those  not  in  power  see  them  from  below.  It  is  therefore 
the  history  of  all  governments,  all  revolutions,  that  those  in 
power,  from  whatever  part  of  the  people  they  may  have  come, 
judge  by  their  own  view  as  it  appears  from  their  seats,  as 
soon  as  fairly  seated  in  them.' 

»  There  is  a  scene  depicted  in  chap.  x.  of  Mr.  Buhver's  Rienzi,  so  expiessive 
of  what  happens  every  day  and  everywhere,  through  all  spheres  of  human  life, 

iS 


2/4  "^^^  STATE. 

6,  Power  imposes ;  power  receives  everywhere  respect  by 
its  own  character.  However  illegally  acquired,  the  great  ac- 
tion of  power  obtains  homage.  The  success  of  usurpers  is  in 
part  founded  upon  this  fact;  the  people  revere  power j  so  that 
usurpation  itself  becomes  a  new  acquisition  to  farther  usurpa- 
tion. It  is  the  energy  which  manifests  itself  and  the  capacity 
of  action  thus  proved  which  overwhelm  the  beholder.  This 
is  of  peculiar  importance  in  its  application  to  the  limitation  of 
the  executive,  the  depository  of  this  vast  acting  and  imposing 
power,  and  to  the  independence  of  the  judiciary,  which  rarely 
has  an  opportunity  to  act  brilliantly  like  the  other  branches. 

7.  Even  after  careful  limitations  have  been  established,  it 
will  always  be  possible  for  those  who  have  power  to  overstep 
them  and  to  find  aids  and  abettors.  Hardly  had  parliament 
abolished  the  most  ruinous  monopolies,  and  declared  a  prin- 
ciple which  may  be  considered  as  the  germ  of  the  Petition 
of  Right,  in  1623,  when  James  I.  sold  new  monopolies  and 
levied  anew  arbitrary  taxes  on  commerce,  because,  as  he 
asserted,  the  constitution  gave  him  the  right  to  make  com- 
mercial treaties.  Soon  after  the  Petition  of  Right  had  been 
obtained,  Charles  I.  dissolved  the  parliament,  and  did  not 
•SUTiimon  another  for  twelve  years,  attempting  meanwhile  by 
various  illegal  ways  of  raising  money  to  supply  the  needs  of 
the  treasury,  and  thus  paving  the  way  for  the  loss  of  his  life 
and  crown. 

Is  there  not,  then,  reason  enough  to  limit  and  retard  power 
and  prevent  it  from  growth  ? 


that  I  feel  tempted  to  quote  it.  The  reader  will  recollect  that  a  painting  was 
exhibited  for  tlie  purpose  of  testing  and  exciting  the  Roman  people  : 

«"  Know  you  not,'  at  length  said  Pandulfo,  'the  easy  and  palpable  meaning 
of  this  design  ?  Behold  how  the  painter  has  presented  to  you  a  vast  and  stormy 
sea — mark  how  it  waves.' 

"  '  Speak  louder — louder  !'  shouted  the  impatient  crowd. 

"'Hush!'  cried  those  in  the  immediate  vicinity  of  Pandulfo;  'the  worthy 
Signor  is  perfectly  audible  !'  " 


CHAPTER    VIII. 

Legitimacy  of  Governments. — Governments  de  jure,  de  facto. — Divine  Right. 

Legitimacy  of  Governments  with  Reference  to  International  Intercourse.— Can 
the  Legitimacy  of  Government  be  ascertained  by  its  Origin  ?—Filmer,  Loclce, 
Rousseau*  Halier. — The  Origin  of  all  States  essentially  the  same;  yet  Infinity 
of  Circumstances,  which  influence  and  modify  its  Development. — Ancient 
View  on  the  Origin  of  Governments. — Aristotle,  Polybius.— Various  Theories. 
—Social  Contract. — Various  Pacta. — Hobbes,  his  Error. — Theocratic  Theory. 

LXXXIV.  Before  the  subject  of  limitation,  or,  as  more 
fitly  it  might  be  called,  of  moderation  of  power,  is  treated,  it 
will  be  necessary  to  consider  some  others.  The  first  is  the 
legitimacy  of  governments.  What  is  a  legitimate  government, 
for  which  we  have  claimed  power?  What  are  governments 
de  jure,  and  what  de  facto? 

If  nations  or  states  had  never  been  considered  the  descend- 
ible property  of  the  ruler  and  his  family,  and  the  ruler,  there- 
fore, something  above  or  without  the  state,  and  if  people  had 
not  been  dazzled  by  the  supreme  power,  mistaking  it  for  the 
government,  and  its  change  for  a  radical  change  of  the  state, 
while  nevertheless  such  changes  may  take  place  with  very 
little  essential  change  in  the  great  bulk  of  state  institutions, 
as  has  been  said  before — the  dispute  about  legitimate  govern- 
ments would  not  have  assumed  the  character  which  it  actually 
has,  in  spite  of  all  facts  which  history  furnishes.  After  having 
settled  the  true  meaning  of  state,  sovereignty,  government, 
public  power,  and  supreme  power,  it  is  easier  to  arrive  at  a 
clearer  notion  of  legitimate  governments. 

Generally  speaking,  that  government  is  legitimate  which 
exists  according  to  the  fundamental  laws  and  usages  of  the 
state,  i.e.  the  society;  or,  if  these  organic  laws  have  been 
changed,  the  existing  government  is  legitimate  if  the  people 
may  be  considered  as  acquiescing  in  it.  If  the  people  com- 
posing the  state  are  really  satisfied,  it  is  perfectly  clear  that 

275 


276  THE  STATE. 

no  one  else  can  doubt  the  government's  legitimacy,  for,  trite 
as  the  truth  is,  it  is  still  of  fundamental  importance,  that 
the  government  is  simply  and  solely  for  the  benefit  of  the 
society.  But  frequently  the  people  are  kept  in  such  a  state 
that  it  is  impossible  to  ascertain  whether  the  people  can  be 
considered  as  acquiescing  in  it,  even  if  we  put  the  most  ex- 
tensive interpretation  upon  this  word,  or  whether  they  will 
break  forth  the  moment  after  the  demise  of  the  ruler,  and 
destroy  his  statues,  execrating  his  memory : 

"  Descendunt  statute,  lestemque  sequuntur,  .  .   . 
Aidet  adoratum  populo  caput,  et  ciepat  ingens 
Sejanus."  JUVENAL,  x.  60,  seq. 

— a  post-mortem  censure  repeated  by  the  Romans  against 
the  pontiffs, — for  instance,  when  Pope  Paul  IV.  (Caraffa)  died, 
in  1529,  and  the  people  dragged  the  head  with  the  tiara  of 
his  statue  through  the  mire,  of  which  occurrence  Mocenigo 
gives  an  account  (Ranke,  Popes,  transl.,  i.  192).  Suppose  those 
who  perform  these  acts  are,  as  in  some  cases,  e.g.  under  the 
Roman  emperors,  they  must  be  considered,  the  correct  ex- 
ponents of  public  opinion,  all  we  can  say  is  that  the  govern- 
ment, the  agent  of  the  state,  may  have  committed  many 
illegal  acts,  as  agents  of  any  sort  may  at  times  do. 

A  government  may  grievously  oppress  the  people  for  a 
series  of  years,  and  every  one  who  could  produce  a  favorable 
change  might  be  a  public  benefactor.  So  long,  however,  as 
the  government  does  exist,  so  long  as  the  people  prefer  the 
oppression  to  the  danger  of  a  change,  they  must  follow  the , 
oppressive  government.  A  government  fairly  established, 
which  includes  acquiescence  of  the  people,  must  be  con- 
sidered as  legal,  which,  however,  does  not  exclude  the  right 
or  expediency  of  changing  it,  inherent  in  the  state  or  society. 

The  dispute  about  the  legitimacy  of  governments  is  un- 
profitable, and  it  is  far  better  to  inquire  into  what  are  wise  or 
ruinous,  sound  or  rotten,  just  or  unjust  governments.'     The 


'  *  Divine  Right.     The  red  republicans,   Socialists,  etc.,  demanded  it  as  a 
condition  of  being  a  candidate  for  election  to  the   chamber  in   1850  (in  Paris), 


GOVERNMENTS  DE   JURE,  DE  FACTO.  277 

peculiar  theory  of  legitimacy  maintained  by  the  continental 
members  of  the  Congress  of  Vienna  is  opposed  to  reason, 
history,  and  the  course  of  policy  which  the  proclaimers  of 
that  theory  have  been  induced  to  adopt  themselves.  Louis 
Philippe  was  acknowledged,  and  his  son  intermarried  with  a 
reigning  family.  Napoleon  was  acknowledged  by  all  powers, 
and  received  the  hand  of  a  daughter  of  an  old  imperial  house. 
Talleyrand  must  be  considered  as  the  first  who  distinctly  pro- 
nounced, at  that  congress,  this  remarkable  theory,  which  at 
most  can  be  adopted  only  by  the  devoutest  legitimists.  For 
the  sake  of  order  it  is  needful  to  agree  to  consider  legitimate 
all  European  rulers  that  now  exist,  and  those  who  shall  de- 
scend from  them  by  legitimate  intermarriage  with  ruling 
families.  This,  however,  would  amount  to  nothing  more 
than  an  expedient,  about  which  people  may  have  different 
opinions;  for  the  question.  When  does  the  ruler  become  legiti- 
mate ?  is  not  settled.  Talleyrand  had  nothing  else  to  bring 
forward  in  favor  of  the  Bourbons,  when  Napoleon  had  returned 
from  Elba,  and  it  had  become  clear  to  many  members  of  the 
congress  that  the  Bourbons  were  not  the  men  of  the  French 
nation,  and  Austria  inclined  to  readmit  the  emperor  on  the 
throne.  The  principle  was  effective ;  it  saved  the  Bourbons. 
The  English,  of  course,  have  never  acknowledged  this  prin- 
ciple, because  their  constitutional  law  is  founded  upon  the 
distinct  acknowledgment  of  the  nation,  that  calls  rulers  to 
govern  according  to  certain  rules,  principles,  and  funda- 
mental laws  laid  down  by  the  people.  But,  even  according 
to  the  fanciful  theory  of  the  legitimists  themselves,  who  is  the 
legitimate  ruler  at  present  (1838)  in  Spain  ? 

LXXXV.  All    sfovernments    bes^in   as    so-called    govern- 


among  other  things,  that  the  candidate  ought  to  acknowledge  that  tlie  majority 
of  the  people,  in  universal  suffrage,  have  not  the  right  of  establishing  monarchy. 
Is  this  not  a  divine-rij^ht  theory  of  republicanism,  or  divine  right  of  reason,  as 
they  probably  would  call  it?  But  does  the  republic  exist  on  its  own  account, 
even  though  it  may  be  the  most  mischievous  government  in  a  certain  country^ 
at  a  certain  period  ?     And  if  not,  when  does  this  divi  e  right  begin  ? 


2/8  THE  STATE. 

ments  de  facto,  if  the  people  do  not  actually  and  formally 
establish  them.  This  is  but  rarely  the  case,  and  can  be  but 
rarely  so,  according  to  the  political  civilization  of  mankind. 
By  this  I  do  not  mean  that  fact  makes  right,  though  fact  has 
generally  preceded  right.  The  necessity  of  man's  living  in 
the  state  is  so  absolute  that,  whatever  changes  may  take 
place,  a  legal  relation  will  soon  develop  itself  out  of  that 
which  violence  and  fraud,  or  wisdom  and  devotedness,  may 
have  founded.  The  origin  is  not  the  thing.  The  first  sounds 
from  which  the  noblest  idioms  arose  may  have  been  utter- 
ances not  much  differing  from  those  of  animals,  yet  the  subtle 
organization  of  the  Greek  idiom  is  something  very  different 
from  a  brutish  means  of  communication.  Society  wants  jural 
relations ;  it  cannot  exist  without  them,  and  it  cannot,  there- 
fore, continually  recur  to  its  first  elements,  but  must  transform 
the  given  circumstances  into  jural  relations.  This  shows  the 
naturalness  and  energy  of  the  state.  So  the  people  must  live, 
and  they  want  bread.  If  some  one  conquers  the  land  and 
violently  changes  the  owners  of  the  soil,  does  not  the  same 
natural  necessity  of  using  the  produce  of  that  soil  exist,  and 
is  it  not  lawful  to  buy  the  grain  of  the  new  possessor  ?  The 
urgent  want  of  a  state,  the  indispensable  necessity  of  living 
within  a  state,  is  superior  to  all  claims  which  may  be  set  up 
as  to  the  possession  of  power,  just  as  the  absolute  want  of 
nourishment  is  superior  to  any  consideration  of  the  title  by 
which  the  land  is  held  which  produces  it. 

If  certain  individuals  had  any  distinct  rights  and  claims  of 
their  own,  derived  from  some  source  besides  the  necessity  of 
the  society  existing  over  which  they  claim  the  right  to  rule, 
then  we  might  speak  with  propriety  of  legitimate  monarchs 
in  contradistinction  to  changes  of  the  government  effected  or 
fairly  acquiesced  in  by  the  people.  According  to  our  theory, 
given  in  previous  chapters,  this  is  impossible.  Was  Louis 
XVIII.,  when  an  exile  in  England,  the  legitimate  monarch  of 
France,  and  not  Napoleon  ?  He  certainly  was  not  the  mon- 
arch of  France,  and  therefore  could  not  be  the  legitimate. 
"  A  wise  man,"  says  Sophocles  (Qidipus  Rex,  587),  "  would 


KINGS  DE  FACTO.  270 

prize  less  a  king's  name  than  to  do  the  works  of  a  king."  So 
soon  as  we  give  up  the  idea  of  rights  personally  and  abso- 
lutely inherent  in  the  monarch,  and  not  dependent  upon  the 
laws  of  the  land,  the  difficulty  vanishes.  This  is  not  mere 
theory,  but,  in  spite  of  all  pretensions  to  the  contrary,  the 
people  have  always  been  obliged  to  acknowledge  by  facts  that 
the  state  does  not  travel  with  the  prince,  but  remains  with 
society,  with  its  everlasting  legality  and  legitimacy,  though  a 
usurper  may  seize  upon  the  supreme  power  and  commit  a 
number  of  illegal  acts.  We  have  seen  already  that  Louis 
XVIII.  could  not  help  acknowledging  the  legal  state  of 
things  which  had  grown  up  during  his  absence.  It  was  not 
Louis  XVIII.  who  had  succeeded  Louis  XVII.,  who  never 
reigned,  that  was  received  by  France  in  1814;  he  was  a  new 
ruler,  really  and  truly  succeeding  Napoleon.  Indeed,  the 
idea  that  the  monarch  carries  away  with  him  the  legality  of 
the  state  is  no  less  preposterous  than  it  was  in  the  emperor 
Frederic  III.  to  count  his  amputated  foot  among  the  avulsa 
imperii:  "  now  a  leg  has  been  cut  off  from  the  emperor  and 
holy  empire."  (Griinbeck,  41.)  When  the  elector  of  Hesse 
returned  in  18 13  to  his  country,  he  declared  the  king  of 
Westphalia,  having  been  a  usurper,  to  have  possessed  no 
right  of  selling  the  domains,  and  therefore  took  possession  of 
them  without  any  restitution  of  the  sums  for  which  they  had 
been  purchased.  Prussia  acknowledged  the  sales  which  the 
same  kingdom  of  Westphalia  had  made  of  her  domains.  The 
Germanic  diet  decided  against  the  elector  and  for  the  pur- 
chasers, and  when  that  prince  for  years  declined  to  yield 
to  the  diet,  and  all  the  endeavors  even  of  Austria  were  in 
vain,  the  diet  ordered  the  troops  of  the  neighboring  members 
of  the  confederacy  to  make  the  elector  comply  with  its  de- 
cision. 

V 

LXXXVI.  The  English  go  still  flu'ther.  "A  king  de  facto 
and  not  de  jure,  or,  in  other  words,  a  usurper  [of  the  crown],  is 
^  king  within  the  meaning  of  the  statute  which  defines  trea- 
son (25   Edw.  III.,  c.  2),  and  therefore  treasons   committed 


28o  THE  STATE. 

against  Henry  VI.  were  punished  under  Edward  IV.,  though 
all  the  line  of  Lancaster  had  been  previously  declared 
usurpers  by  act  of  parliament.  But  the  most  rightful  heir  of 
the  crown,  or  king  de  jure  and  not  de  facto,  who  hath  never 
had  plenary  possession  of  the  throne,  as  was  the  case  of  the 
house  of  York  during  the  three  reigns  of  the  line  of  Lancaster, 
is  not  a  king  within  this  statute  against  whom  treason  can  be 
committed."  This  passage  and  its  continuation  (taken  from 
Blackstone,  iv.  y^  et  seq. ;  see  also  Hallam,  Constitutional  His- 
tory of  England,  vol.  i.  chap,  i,  pp.  I2,  13)  show  in  the  clearest 
possible  light  that,  according  to  English  views,  the  state  and 
monarch  are  totally  different,  and  that  treason  is  not  so  pecu- 
liar a  crime  on  account  of  inherent  qualities  in  the  royal 
person,  but  simply  because  the  king  is  seated  on  the  throne 
on  account  of  the  safety  of  the  state  or  the  benefit  of  society. 
I  would  refer,  as  to  these  momentous  points,  to  Hallam's 
Constitutional  History  in  general.  Protection,  the  main 
object  of  the  state,  requires,  as  we  have  seen,  power;  but 
governments  sometimes  lose  for  some  reason  or  other,  by 
their  own  fault  or  not,  all  necessary  power.  Is  then  a  power- 
less government  still  a  legal  government?  that  is,  is  a  gov- 
ernment which  cannot  any  longer  perform  that  for  which  it 
exists,  still  legal  ?  If  so,  then  the  people  exist  for  the  govern- 
ment, not  the  government  for  the  people.  St.  Zachary,  the 
pope,  sent  word  to  Pepin,  who  had  demanded  an  answer, 
"  that  he  who  had  the  power  had  better  possess  also  the  title 
of  king."  That  I  do  not  strive  to  establish  the  theory  of 
mere  power,  as  it  rules  in  Asia,  must  appear  from  all  that  has 
been  said,  and  will  appear  still  more  from  the  sequel. 

And  let  me  add,  how  has  mankind  at  large  decided  the 
matter?  Why  is  there  universally  made  so  broad  a  distinc- 
tion between  treason  against  the  government  and  any  other 
crime  ?  Let  a  fugitive  convicted  of  treason  against  his  govern- 
ment at  home  go  to  any  other  country,  is  he  treated  as  a 
criminal,  received  as  a  thief  would  be  ?  But  let  the  fugitive 
have  committed  treason  against  his  countiy  and  betrayed  it, 
and  will  he  still  be  received  as  a  man  with  whose  act  society 


GOVERNMENTS  DE   JURE,  DE  FACTO.  28 1 

has  nothing  to  do  ?  In  the  British  Peerage  it  is  mentioned 
of  the  ancestors  of  some  peers  that  they  were  executed  for 
treason.  Would  it  be  mentioned  if  they  had  been  beheaded 
for  an  act  of  treason  against  their  country  ?  The  effect  upon 
us  when  we  learn  that  such  or  such  a  lord  conspired  against 
the  king  is  very  different  from  that  produced  by  the  treachery 
of  some  ministers  of  Charles  II.  or  the  common  murder  com- 
mitted by  Earl  Ferrers.  Is  this  universal  difference  not 
founded  upon  some  true  principle  ?     Surely  it  is. 

LXXXVII.  Louisiana,  bought  in  1803  by  the  United  States 
from  the  French,  was,  perhaps,  illegally  acquired;  for,  besides 
the  great  probability  that  the  inhabitants  of  Louisiana  terri- 
tory were  averse  to  the  purchase  and  called  upon  the  Ameri- 
cans to  act  up  to  their  principle  of  popular  liberty,  congress 
had  a  very  questionable  constitutional  right,  if  any,  to  spend 
fifteen  millions  of  dollars  for  the  purchase  of  foreign  territory. 
But  there  are  reasons  and  circumstances  which  carry  along 
states  and  nations.     To  be  securely  and  truly  master  of  the 
western  country  it  was   necessary  for  the   United   States   to 
possess   the   mouth  of  the   Mississippi ;  and  would   now  any 
one  insist  upon  the  members  from  Louisiana  being  excluded, 
because   Louisiana  was  acquired   unconstitutionally?     With 
how  many  frauds  and  crimes  has  that  country  we  now  call 
France  been  brought  together !  yet  she  forms  at  present  a 
state  with  all   legal  requisites.     Some  call  this  the  right  of 
conquest.     First,  fraud  is  not  conquest,  and  secondly,  con- 
quest and  right  are  entirely  different  things,  for  the  very  idea 
of  conquest  is  that  I  acquire  something  by  force  and  not  by 
right.     The  fact  is  simply  this :  mankind  rise  gradually  out 
of  the  state  of  force  into  that  of  reflection,  in  politics  as  in  any 
other  branch.     But  whatever  these  many  different  conditions 
may  be,  which  affect  the  rise  of  various  states,  they  could  not 
rise  and  develop  legal  relations  even  out  of  the  merest  rela- 
tions of  violence,  if  there  did  not  exist  the  necessity  of  the 
state,  i.e.  of  a  jural  society  for  men.     The  question  of  legiti- 
mate governments  resolves  itself  into  two :    who  shall   be 


282  THE  STATE. 

acknowledged  by  foreign  powers  as  the  legitimate  ruler  or 
rulers,  and  which  is  the  legitimate  government  at  home.  The 
first  question,  properly  belonging  to  international  law,  has  in 
practice  always  been  decided  according  to  fact ;  that  govern- 
ment which  is  fairly  established  is  acknowledged,  except  it 
has  been  the  interest  of  the  foreign  state  not  to  do  so,  A 
sovereign  nation  is,  because  sovereign,  free  and  independent, 
which  involves  that  it  has  a  right  to  establish  any  government 
it  pleases.  This  does  not  exclude  the  necessity  under  which 
some  states  may  be,  of  interfering  with  the  affairs  of  another; 
for,  whatever  the  theory  may  be,  practically  it  is  true  that 
states  are  sometimes  so  closely  connected  and  interlinked  by 
various  interests  that  they  essentially  affect  each  other,  how- 
ever inconvenient  it  may  be,  or  opposed  to  honestly  professed 
principles.  Self-preservation  alone  forces  at  times  a  state  to 
interfere  with  the  affairs  of  another. 

The  second  question  is  much  simpler,  if  we  recollect  what 
has  been  said  of  the  state,  and  that  absolute  or  blind  obedience 
to  whatever  authority  is  a  moral  incongruity.  (See  on  Obe- 
dience to  Laws.)  If,  however,  the  citizen  must  decide  in  a 
time  of  civil  war,  as  at  present  (1837-1838)  in  Spain,  he  must 
make  up  his  mind  solely  according  to  the  question,  which  of 
the  contending  parties  promises  the  comparatively  best  gov- 
ernment according  to  the  principles  on  which  it  stands  as  a 
party,  or  on  which  it  has  set  out  in  the  contest,  and  which  are, 
according  to  the  natural  course  of  things,  most  probably  its 
inherent  principles — to  which  it  will  owe  its  existence,  not  its 
proclaimed  principles,  or  professions.  For,  be  it  repeated,  no 
government,  no  dynasty,  can  possibly  have  any  claims  of  its 
own,  equivalent  or  opposed  to  those  of  the  nation.  If  one  of 
the  contending  parties  is  the  government,  according  to  the  es- 
tablished laws,  and  yet  the  other  party  would  be  the  eligible 
one  according  to  the  principle  laid  down,  we  must  decide 
which  will  be  for  the  more  essential  welfare  of  the  state,  to  ad- 
here to  the  established  laws,  or  to  change  them  by  the  victory 
of  the  other  party ;  for  no  laws  are  immutable.  Surely  it  would 
not  have  been  wise  or  good  to  fight  for  the  Merovingians 


ITS  ORIGIN. 


283 


against  the  Carlovingians.  (See  Political  and  Legal  Her- 
meneutics.)  In  the  latter  case  the  change  may  be  partially 
or  wholly  a  revolution. 

LXXXVIII.  When  the  idea  of  the  state  became  p-radu- 

o 

ally  more  clearly  developed,  as  an  institution  with  a  character 
distinctly  its  own,  and  more  and  more  separated  from  the 
ideas  of  force  as  well  as  that  of  the  family  union ;  when  the 
state,  in  the  progress  of  the  ideas  of  justice,  began  to  be  sepa- 
rated from  the  dross  of  foreign  matter,  and  men  endeavored 
to  sift  that  which  is  essential  to  the  institution  of  the  state  from 
that  which  is  accidental  and  unessential,  it  was  but  natural 
that  various  attempts  should  be  made  which  were  partially  or 
wholly  unsuccessful.  It  has  happened  thus  with  most  insti- 
tutions. Mankind  required  thousands  of  years  before  so  sim- 
ple an  institution  as  that  of  the  judiciary,  or  even  that  of  penal 
jurisdiction,  could  be  clearly  developed  and  separated  from 
the  entangling  notions,  first  of  private  vengeance,  and  after- 
wards of  public  vengeance.  One  of  the  erroneous  notions  of 
the  state,  yet  easily  accounted  for  in  the  course  of  civilization, 
was  that  we  should  arrive  at  the  essential  character  of  the 
state  by  investigating  its  origin,  a  misconception  to  which  the 
most  opposite  parties  sedulously  adhered.  Filmer  and  Locke, 
Hobbes,  Rousseau,  and  Louis  von  Haller,'  have  all  in  their 
turn  believed  it  possible  to  ascertain  the  precise  character  of 
the  state  by  this  mode  of  inquiry,  and  every  one  of  them  has, 
as  it  now  appears  to  us,  unavoidably  been  obliged  to  recur  to 
the  strangest  fictions.  But  when  Euler  endeavored  to  reduce 
the  principles  of  music  to  mathematical  laws,  was  he  told  that 
it  was  folly  thus  to  ascertain  the  character  of  this  soothing 
art,  because  the  first  people  that  beat  the  cymbal  or  the  drum 
knew  nothing  of  mathematics  ?  Is  it  wrong  to  say  that  music 
kindles  the  feeling  of  devotion,  because  the  first  conch  that 
was  blown  may  have  served  to  animate  people  to  contest 
and  slaughter?     Or  is  it  wrong  to  treat  of  music  separately, 


See  the  article  on  him  in  the  Encyclopoedia  Americana. 


284  THE  STATE. 

and  acknowledge  it  as  an  art  by  itself,  because  music  began 
and  rose  in  combination  with  dance  and  poetry  ?  Is  music 
forever  destined  to  be  inseparably  united  with  dancing,  be- 
cause the  first  notions  of  rhythm,  essential  to  music,  mani- 
fested themselves  in  the  dance  ?  Are  the  vine-dressers  not 
allowed  to  give  utterance  to  their  happy  feelings  at  the  con- 
clusion of  a  rich  vintage,  because  all  dances  were,  perhaps, 
originally  of  a  religious  or  warlike  character  ?  Do  we  learn 
anything  with  regard  to  the  true  character  of  the  infinitesimal 
calculus  or  the  celestial  mechanics  from  the  fact  that  all 
counting  began  with  five  fingers,  so  that  it  is  believed  that  to 
five  (to  count  by  five)  was  the  original  expression  for  count- 
ing?^ Do  we  learn  the  true  character  of  a  healthy,  comfort- 
able, and  safe  house  for  a  civilized  man  from  the  first  tents, 
which  consisted  perhaps  of  nothing  more  than  the  skin  which 
served  also  as  a  cloak  ?  We  may  learn,  indeed,  that  man  is 
left  physically  so  unprotected  that,  be  it  against  burning  sun 
or  piercing  cold,  ray  or  rain,  he  is  always  found  with  some 
shelter  or  other,  and  that  to  him  therefore,  naked  but  en- 
dowed with  reason  as  he  is,  a  shelter,  a  hut,  a  house,  is  a 
consequence  as  natural  to  his  organization  as  the  well-lined 
burrow  of  the  northern  animals,  or  indeed  their  fur  itself 

LXXXIX.  The  state  originated  always  in  one  and  the 
same  way,  that  is,  by  the  conception  of  the  idea  of  the  just, 
or  by  the  development  of  the  jural  relations  among  men. 
These  relations,  however,  developed  themselves,  and  continue 
to  develop  themselves,  out  of  an  infinity  of  given  circum- 
stances and  conditions,  produced  by  family  adhesion,  force, 
fraud,  vengeance,  pride,  deliberate  debate,  slavery,  kindness, 
and  lov^e  of  liberty,  conditions  growing  out  of  the  life  of 
mountaineers,  or  of  herdsmen  in  the  steppes,  or  in  well- 
wooded  plains,  of  countries  with  navigable  rivers,  inlets  or 
barren  wastes,  islands  or  diked  shores,  or  the  summits  of 
mountains,^  of  hunters,  agriculturists,  mariners,  merchants,  or 


'  Homer,  Odyssey,  iv.  412. 

2  See  General  Introduction  to  Heeren's  Sketch  of  the  Political  History  of  An- 


ITS  DIFFERENT  ORIGIN.  285 

warriors,  men  that  had,  or  men  that  desired  property,  of 
pirates  or  protectors  of  the  weak,'  out  of  pure  religion,  or 
persecution.^  Hippocrates,  Aristotle,  INIontesquieu,  mention 
the  influence  which  soil  and  climate  exercise  upon  the  social 
relations,  and  the  state  :  they  influence,  but  I  do  not  say  that 
they  determine,  the  latter.^  The  reason  is  very  clear.  All 
the  various  relations  which  may  subsist  between  men  make 
up  that,  which  unites  them  into  society  and  leads  to  jural  re- 
lations, or,  if  protected  by  pronounced  laws,  legal  relations  ; 
the  sum  total  of  which  is  the  state  with  its  government.  A 
state  is  always  something  gradually  grown  and  of  progressive 
development,  for  a  man  can  no  more  step  out  of  his  time  than 
he  can  help  being  the  offspring  of  his  progenitor.  He  can 
and  will  improve  and  develop,  or  change  and  rebuild,  but  in 
no  instance  can  he  possibly  begin  anew.  And  were  he  to 
break  down  everything,  or  to  build  from  scattered  fragments, 
still  the  materials  he  has  are  the  fragments  of  broken  institu- 
tions, and  his  mind  is  necessarily  formed  and  fashioned  by  his 
time.  "  Nee  temporis  unius  nee  hominis  esse  constitutionem 
reipublicae,"  are  the  words  of  Cato.    Cicero,  de  Republ.,  ii.  21.* 


cient  Greece,  2(3  ed.  of  the  translation,  Oxford,  1834,  for  the  decided  influence 
which  the  physical  state  of  Europe,  climate  as  well  as  surface,  had  on  all  her 
domestic  and  political  institutions.  The  whole  superintendence  of  the  dikes  in 
Holland  came,  in  the  natural  course  of  things,  to  be  managed  by  elective  boards, 
and  Van  Campen  shows  that  this  circumstance  essentially  contributed  to  the 
growth  of  republican  notions,  as  the  Alps  led  the  Swiss  mountaineers  to  theirs. 
Van  Campen,  History  of  the  Netherlands,  vol.  ii.  page  12,  et  seq.  (in  German, 
in  Heeren  and  Uckert's  series  of  histories.) 

'  The  French  colony  of  St.  Domingo,  on  the  one  hand,  and  the  Knights  of 
St.  John  (at  Rhodes  and  Malta)  on  the  other;  for  the  latter  formed  a  real  state 
to  all  intents  and  purposes,  with  sovereign  power. 

*  Many  sovereign  bishoprics  and  archbishoprics;  the  state  of  the  Jesuits  in 
Paraguay,  and  the  annexation  of  Granada  to  Spain,  or  in  fact  Spain  herself,  and 
so  many  Mahomedan  states. 

3  Dicta  so  true  have  been  enlarged  and  carried  out  too  far  by  many.  See 
abundant  instances  in  Falconer,  Remarks  on  the  Influence  of  Climate,  Situation, 
Nature  of  Country,  etc.,  1781. 

♦  *  That  which,  in  a  more  restricted  sense,  is  called,  in  common  parlance,  a 
state,  civitas,  that  is,  stable  society  with  government  and  laws,  with  fixed  abodes 
in  one  particular  country,  necessarily  begins  only  with  the  growth  of  landed 


286  THE  STATE. 

As  to  the  larger  states,  they  have,  in  many  instances, 
actually  originated  in  a  contract.  When  families  increase 
into  tribes,  and  tribes  again  subdivide  themselves,  continued 
war  between  them,  chiefly  on  account  of  revenge  for  some 
injury,  especially  for  homicide,  is  often  the  consequence.  To 
avenge  the  death  of  a  kinsman,  or  fellow-member  of  the  tribe, 
is  considered  by  all  early  nations  as  a  sacred  duty.  As,  how- 
ever, the  various  tribes  of  common  origin  cultivate  the  same 
religion,  the  celebration  of  common  holy  rites  leads  these 
distracted  parts  at  certain  seasons  together.  In  order  to  cele- 
brate these  religious  feasts  in  peace,  it  is  necessary  to  suspend 
hostilities;  this  leads  to  agreements  of  peace  for  a  limited 
period,  and  these  become,  in  the  course  of  time,  the.  founda- 
tions of  national  compacts.     Finally,  many  of  these  confeder- 

property,  in  all  larger  states  the  most  important  part  of  property,  to  which 
our  expression  "  real  property"  even  now  points.  The  early  law  of  England 
took  no  cognizance  of  movable  property  (Blackstone,  Com.,  ii.  c.  xxiv.),  partly 
because  there  existed  but  little  movable  property  claiming  legislative  attention, 
partly  because  the  possession  of  land  determined  the  relation  of  the  individual  to 
the  political  society  in  a  far  different  degree  from  what  the  possession  of  any 
movable  property  could  do.  Heeren,  in  his  Essay  on  the  Rise  and  Progress  of 
Political  Theories,  contained  in  the  translation  of  his  Historical  Treatises,  Oxford, 
1836,  says,  "  The  first,  though  not  the  only,  object  of  a  state  is  the  security  of 
property  :  now,  although  movables  are  just  as  much  property  as  land,  yet  it  is 
only  where  the  latter  has  been  appropriated  that  the  right  of  property  attains  to 
its  full  importance ;  and  not  only  this,  but  the  necessity  of  defining  its  different 
forms  by  laws  is  then  for  the  first  time  perceived,  because  land  is,  from  its  nature, 
the  only  permanent  object  of  this  right."  This  last  remark  is  too  strong,  and  does 
not  keep  sufficiently  in  view  the  immense  importance  which,  at  later  periods, 
personal  property  in  the  shape  of  moneyed  capitals  acquires.  So  likewise  must 
we  limit  Heeren's  views  as  to  the  historical  beginning  of  states.  Previous  to  the 
acquisition  of  landed  property  he  maintains  that  no  state  exists,  and  actually  says, 
"  no  one  would  argue  that  the  Calmucs,  or  the  Kirgisian  and  Arabian  Bedouins, 
foi-m  what  is  properly  termed  a  state  (civitas)."  As  to  civitas,  we  have  the  asso- 
ciation of  a  city,  a  compact  community,  in  our  mind,  and  if  we  may  not  ascribe 
to  those  nations  what  is  "  properly  termed  a  state,"  most  assuredly  we  must 
ascribe  to  them  what  is  philosophically  termed  a  state,  else  I  do  not  know  what 
we  ought  to  call  their  jural  society.  This  certainly  exists,  for  they  have  laws, 
they  judge  delinquents,  they  declare  war,  they  maintain  right,  in  their  fashion 
indeed,  but  still  right  and  jural  relations  they  do  maintain.  To  be  brief,  have 
they  or  have  they  not  a  government  ?  If  Heeren  is  right  in  this  point,  then  I 
believe  the  expression  patriarchal  government  to  involve  a  contradiction. 


VARIOUS   THEORIES.  287 

acies  grow  into  more  consolidated  states.  Yet  these  com- 
pacts are  not  the  first  origins  of  the  state  ;  the  state,  that  is, 
poHtical  society,  exists  already.  The  history  of  Sweden 
furnishes  a  striking  example  of  this  process  of  political  gen- 
eration. 

XC.  The  chief  theories  respecting  the  origin  of  the  state 
are  those  which  start  from  a  previous  authority,  from  force, 
a  religion  (or  priesthood),  or  contract.  I  take  the  latter  first. 
Ancient  and  modern  authors,  in  order  to  explain  the  right 
which  a  government  has  over  the  governed,  have  asserted 
that  the  state  was  founded  upon  a  contract  of  its  members  for 
mutual  protection  and  assistance,  for  which  each  one  is  will- 
ing to  give  up  what  has  been  termed  natural  liberty,  a  state  in 
which  man  was  supposed  to  depend  upon  his  own  will  alone. 
Some  writers,  and  among  them  are  scholars  of  great  distinc- 
tion, believe  not  only  in  the  theory  of  an  implied  or  tacit  con- 
tract, but  that  all  political  law  (or  state  law)  has  grown  out  of 
the  germ  to  be  found  in  the  contract  of  a  certain  number  of 
tribes.^  Aristotle  says  distinctly,  in  his  Politics,  that  the  regal 
power  has  been  founded  by  the  will  of  the  people.  Plato's 
view  of  the  origin  of  the  state  coincides  with  that  of  Aris- 
totle. Polybius  calls  royalty  {[iacihia)  only  that  government 
which  has  originated  out  of  the  free  will  of  the  people,  and 
which  subsists  more  by  public  opinion  and  acknowledgment 
than  by  force  and  fear ;  in  the  contrary  case  he  calls  it  mon- 
archy. (Polybius,  vi.  5,  seq.)  And  well  may  be  mentioned 
here  again  Herodotus  (i.  96),  where  he  gives  an  account  of 
the  origin  of  the  monarchy  of  Deioces  among  the  Medians, 
out  of  free  choice  of  the  people;  for,  whether  the  event 
actually  occurred  in  this  manner  or  not,  the  passage  suffi- 
ciently shows  the  view  of  the  ancients.^  See  book  ii.  sect. 
xxxi.  n.  3. 


'  Staatsrecht  des  Alterthums,  by  Charles  D.  Iliillmann,  Cologne,  1S20,  p.  59. 
Compare  also  his  Fundamental  Constitution  of  Rome,  Bonn,  1832,  p.  22,  et  seq. 
Mr.  Hullmann  is  professor  of  history  in  the  University  of  Honn. 

2  I  refer  the  reader  to  the  very  thorough  work,  Darstellung  des  Griech.  Staats- 


288  THE  STATE. 

XCI.  If  we  understand,  by  the  theory  of  the  pohtical  or 
civil  contract,  that  view  of  the  state  according  to  which  it  is  a 
poHtically  organized  society  of  members,  each  of  whom  stands 
in  a  jural  relation  to  every  other  member  of  the  society,  there- 
fore, in  this  point  of  view,  in  a  relation  of  equality,  namely, 
the  equality  of  justice;  and  if  we  farther  mean  to  express 
by  civil    contract  that   no  jural   relation,  be   it  between  the 
mightiest  and  the  weakest,  can  possibly  exist  without  a  reci- 
procity of  obligations  (for  the  contrary  destroys  the  idea  of 
obligation,  since  obligation  can  only  exist  in  moral  beings, 
and  obligation  if  on  one  side  only  would  destroy  the  char- 
acter of  a  moral  being  with  a  moral  value  of  his  own),  that 
the  state  is  a  society  of  common  and  mutual  weal,  guaran- 
teed by  the  law,  which  one  of  the  ancients  calls  "  communis 
reipublicse  sponsio ;"  if  we  finally  mean  by  civil  contract  that 
those   fundamental   rules   according  to  which   some  nations 
govern    themselves    are    binding    upon    both    parties    until 
changed  by  the  state,  i.e.  by  society  with  inherent  sovereignty 
— then  the  theory  of  the  civil  compact,  or  contract,  is  correct, 
and  the  only  one  which   gives  to  the  state  its  true,  that  is, 
jural  character,  and  thus  insures  its  lawful  continuation.     If, 
however,  we  imagine  by  civil  contract  an  actual  agreement 
made  at  some  definite  period  between  human  beings,  other- 
wise either  running  wild  and  harming  one  another,  or  pos- 
sessed of  well-developed   reflection,  who  enter,  after  mature 
consideration,  into  so  solemn  a  covenant  (the  one  supposed 
by  Hobbes,  the  other  by  Locke),  and  that  a  contract  of  this 
sort  with  a  particular  government  or  dynasty  is  binding  for- 
ever; nay,  if  we  theorize  this  idea  so  far  as  to  adopt  three 


verfa^sungen,  by  F.  W.  Tittmann,  Leipsic,  1822,  p.  80,  et  seq. ;  also  to  W. 
Wachsmuth,  Hellenic  ArcliDeology  from  a  Political  Point  of  View,  Halle,  1S26, 
4  vols.,  vol.  i.  pp.  92  and  100 — a  work  of  vast  research. 

That  all  the  works  of  distinction  on  Greece  and  Rome,  as  those  of  Heeren, 
Miiller,  Gibbon,  Niebiihr,  also  Guizot,  etc.,  are  important  here,  need  not  be 
mentioned.  I  have  not  cited  Cicero  De  Republica,  for,  as  is  the  case  in  nearly 
all  the  writings  of  this  author,  he  chiefly  follows  the  Greeks  when  he  discusses 
philosophical  points. 


MAN  NATURALLY  CONFIDING.  289 

different  compacts — the  pactum  2inionis,  according  to  which 
the  individuals  determine  by  a  majority  of  votes  the  end 
and  object  of  the  union  or  society ;  the  pactum  oniiiiatioiiis, 
according  to  which  the  ruler  and  the  fundamental  laws 
are  designated  ;  and  the  pactum  subjcctionis,  by  which  the 
contracting  parties  subject  themselves  and  all  future  mem- 
bers to  this  ruler  or  government,  as  Puffendorf  represented 
it — then  the  idea  of  the  contract  is  radically  wrong,  and 
leads  to  dangerous  conclusions,  favoring  tyranny  or  licen- 
tiousness. 

XCII.  First  of  all  we  have  to  imagine  man  in  a  supposed 
state  of  nature,  in  which  we  never  find  him,  nor  is  it  possible 
to  say  which  of  the  two  early  stages  of  human  society  is 
the  state  of  nature,  when,  as  Hobbes  says,^  every  one  wars 
with  every  one,  for  which  we  have,  as  he  says,  to  imagine  a 
number  of  men  just  created.  But  politics  is  not  an  imagina- 
tive science,  and  we  can  find  nowhere  such  a  number  of  men. 
Or  we  must  imagine  a  society  living  in  peace  but  obliged  to 
protect  themselves  against  others.  Hobbes  says  that  every 
man  naturally  distrusts  every  other,  and  among  other  things  he 
points  at  our  locks  and  keys  as  a  proof  of  his  position.  But 
he  forgets  that  the  knowledge  or  suspicion  of  one  thief  exist- 
ing in  a  community  of  twenty  thousand  would  induce  all  the 
honest  members  to  make  use  of  locks.  On  the  contrary,  man 
trusts  a  thousand  times  before  he  distrusts  once.  Our  whole 
life  and  intercourse  are  essentially  founded  upon  trust ;  look 
around  you,  and  you  will  find  innumerable  instances.     Nor  is 


'  "  Seeing  then  to  the  offensiveness  of  man's  nature  one  to  another,  there  is 
added  a  right  of  everything,  whereby  one  man  invadeth  with  right,  and  another 
man  with  right  resists,  and  men  live  thereby  in  perpetual  diffidence,  and  study 
how  to  preoccupate  each  other,  the  estate  of  men  in  this  natural  liberty  is  the 
estate  of  war,"  etc.     Hobbes,  De  Corpore  Politico,  part  i.  chaj).  i. 

The  same  great  author  says,  in  his  Leviathan,  part  i.  (Of  Man),  chap,  xiii., 
"  Again,  men  have  no  pleasure  in  keeping  company,  where  there  is  no  power 
able  to  overawe  them  all."  Yet  men  will  always  congregate,  even  when  public 
power  has  been  relaxed. 

19 


290 


THE  STATE. 


this  so  only  because  we  live  in  a  regulated  society  and  polit- 
ically protected.  Caille  started  from  the  Senegal  and  worked 
his  way  to  Timbuctoo  and  back  to  Fez  through  the  desert, 
single-handed,  without  protection.  He  undoubtedly  knew 
that  there  was  great  danger  in  his  undertaking,  but,  on  the 
other  hand,  was  not  his  perilous  journey  mainly  and  essen- 
tially undertaken  upon  the  idea  of  trust  in  utter  strangers, 
that  had  not  been  visited  by  Europeans  before,  and  had  not 
even  a  common  color  with  him  ?  He  trusted  because  they 
were  men,  and  for  no  other  possible  reason,  and  considered 
all  the  chances  of  perishing  by  the  hands  of  the  Africans, 
however  great  the  danger,  still  as  exceptions. 

If  a  stranger  tells  you  something,  to  what  do  you  incline, 
to  believe  or  disbelieve  him?  You  only  disbelieve  if  there  are 
particular  reasons  which  induce  you  to  do  so ;  if  none,  you 
believe,  or  incline  to  believe.  Men,  like  animals,  have  to 
learn  distrust;  their  nature  is  confiding.^  Hobbes,  moreover, 
contradicts  himself,  for  does  not  every  idea  of  a  compact  show 
that  each  one  has  confidence  in  a  greater  number  than  he  dis- 
trusts? His  very  idea  is  founded  on  trust.  He  who  has' 
seen  a  body  of  troops  which  for  some  reason  or  other  is 
seized  with  distrust  in  the  officers  and  in  one  another,  or 
which,  composed  of  heterogeneous  elements,  has  not  yet  ar- 
rived at  mutual  trust,  knows  how  futile  any  attempt  is  to 
keep  them  together  even  by  force.  There  is  no  imaginable 
force  that  can  keep  a  body  of  men  united,  be  it  for  whatever 
purpose,  if  they  are  not   first  morally  united,  be  this   upon 


»  Clapperton  found  the  ci"anes  in  Africa  without  any  fear.  Lieutenant  Paul- 
ding (Cruise  of  the  U.  S.  Schooner  Dolphin,  New  York,  1S31)  caught  the  birds  on 
the  Marquesas  Islands  with  his  hand.  Bougainville  found,  in  1765,  foxes  and 
hares  on  the  Falkland  Islands,  tame.  Turkeys  and  deer,  though  hunted  by  the 
Indians,  were  comparatively  tame  when  the  Puritans  landed  in  New  England. 
The  works  of  Cook,  Kotzebue,  or  any  circumnavigator  state  the  same.  So  like- 
wise many  reports  of  the  first  Spaniards  who  went  to  South  America.  What  is 
more,  the  animal  learns  to  regulate  its  caution  according  to  the  habitual  danger. 
A  hen  flies  frim  the  boy,  but  only  to  a  certain  distance.  Many  animals  in 
the  forest  flee  from  man  with  a  gun,  but  show  comparative  confidence  if  he  be 
unarmed. 


HOBBES.  291 

habit,  prejudice,  or  even  for  criminal  purposes  :    the  union 
must  be  mental  in  its  origin. 

XCIII.  Secondly,  it  is  thought  by  this  contract  to  establish 
the  reason  why  man  shall  obey  the  laws,  why  every  member 
is  bound  to  acknowledge  public  authority,  even  though  he 
dislike  it.  No  one  can  study  the  writers  on  natural  and 
political  law  without  perceiving  at  once  that,  whether  they 
were  always  aware  of  it  or  not,  when  they  spoke  of  govern- 
ment, as  I  have  said  already,  the  idea  of  the  monarch  was 
present  in  their  minds.  Hence  government  appeared  to  them 
as  something  separate  from,  opposed  in  a  degree  to,  the 
people :  in  short,  they  did  not  conceive  society  as  such,  but 
people  as  the  ruled  part  and  government  as  the  ruling,  both 
materially  separate  and  distinct.  Hence  the  many  incon- 
gruities in  writers  whom  we  have  nevertheless  to  acknowl- 
edge as  minds  of  great  power  and  grasp,  and  hence,  likewise, 
the  totally  opposite  ends  which  they  have  arrived  at  by  the 
same  means.  Hobbes,  by  his  covenant,  arrives  at  the  most 
absolute  monarchy,  in  which  the  ruler  has  power  over  life, 
death,  and  religion — over  everything;  and  Locke  arrives  at 
a  limited  monarchy.  He,  indeed,  made  a  great  step  towards 
the  true  understanding  of  the  real  source  of  power  (which 
power  Bodin,  see  chap,  ix.,  not  to  speak  of  the  ancients,  had 
found  already  in  the  people)  by  acknowledging,  at  least,  the 
family  in  that  supposed  state  of  nature,  and  making  the  cove- 
nant only  between  the  heads  of  families,  by  which  therefore 
he  escapes  the  absolute  submission  of  Hobbes.  (See  Locke's 
Two  Treatises  of  Government.)  If  I  thus  show  in  what  pre- 
vious writers  have,  as  I  believe,  erred,  I  nevertheless  acknowl- 
edge with  gratitude  their  great  merit,  and  believe,  moreover, 
that  political  science  could  hardly  have  developed  itself  without 
passing  through  these  gradual  stages.  Hobbes,  whatever  erro- 
neous consequences  he  may  have  derived  from  his  supposed 
state  of  nature  and  consequent  compact,  yet  made  a  great 
step,  indeed,  towards  bringing  home  power  to  its  true  seat. 
He  brought  power,  at  least,  to  a  human  origin,  which  was  no 


292 


THE  STATE. 


mean  service  to  rational  politics.    Without  it,  the  state  would 
not  even  now  be  acknowledged  essentially  a  jural  institution. 

XCIV.  "  No  law  can  be  made,  till  they  (men)  have  agreed 
upon  the  person  that  shall  make  it,"  says  Hobbes,  in  his  Le- 
viathan, part  i.  chap.  xiii.  But  is  the  agreement  to  invest  a 
man  with  so  important  a  trust  as  that  of  making  laws  for 
others,  no  law  itself?  It  is  the  most  important  law  of  all — 
the  fundamental  law.  And  whence  do  men  derive  the  power 
to  elect,  in  other  words,  to  fix,  by  a  majority  of  voices,  upon 
a  man  that  shall  rule  ?  Where  is  the  right  to  bind  the 
minority  ?  Here  is  the  point  that  can  never  be  solved  by  the 
theory  of  the  contract,  taken  in  the  sense  as  I  treat  of  it  here. 
Even  where  the  men  assembled  and  joined,  as  in  the  case 
of  the  Rhode  Island  planters,  previously  mentioned,  they 
never  doubted  for  a  moment  that  the  majority  have  the  right 
over  the  minority,  which  destroys,  however,  the  idea  of  the 
contract,  for  a  contract  requires  a  voluntary  agreeing  in  all 
parties,  and  the  minority  would  not  be  voluntary  parties. 
This,  again,  is  a  case  in  which  a  word  has  misled:  "the 
people  make  a  contract,"  but  the  people  are  not  yet  an  ag- 
gregate. Every  one  is  still  insulated  for  himself.  Each 
one,  therefore,  must  agree  for  himself 


»  *  As  to  the  history  of  the  idea  that  power  comes  from  and  is  granted  by  the 
people,  I  will  remark  here  only,  with  regard  to  England,  that  Hooker,  who  died 
half  a  century  before  Hobbes's  Leviathan  was  published,  makes  in  his  excellent 
Ecclesiastical  Polity  this  remark :  "  So  that  in  a  word  all  public  regiment,  of 
what  kind  soever,  seemeth  evidently  to  have  arisen  from  deliberate  advice,  con- 
sultation, and  composition  between  men,  judging  it  convenient  and  behoveful  ; 
there  being  no  impossibility  in  nature,  considered  by  itself,  but  that  men  might 
have  lived  without  any  public  regiment"  (Eccl.  Polit.,  i.)  :  yet  he  speaks  of 
"times  wherein  there  was  as  yet  no  manner  of  public  regiment"  (lb.).  Practically 
the  consent  of  the  people  we  find  acknowledged  in  the  Parliamentary  Declara- 
tion of  1648  :  "  They  (parliament)  suppose  it  will  not  be  denied  that  the  first  in- 
stitution of  the  office  of  a  king  in  this  nation  was  by  agreement  of  the  people, 
who  chose  one  to  that  office  for  the  protection  and  good  of  those  who  chose  him, 
and  for  their  better  government,  according  to  such  laws  as  they  did  consent 
unto."  Translator  of  Heeren's  Essay  on  the  Rise,  Progress,  etc.,  of  Political 
Theories,  in  his  Historical  Treatises,  Oxford,  1836,  p.  142. 


UNTENABLENESS  OF   THE   CONTRACT.  293 

Whence  do  the  men  derive  the  right  to  contract  for  women, 
children,  and  servants  ?  If  in  that  so-called  state  of  nature 
all  are  utterly  free  and  unconnected  with  one  another,  whence 
above  all  the  right  to  contract  for  those  that  do  not  yet  live  ? 
To  contract  for  them  after  the  laws  of  the  land  have  once 
been  established  may  be  right,  for  private  purposes,  because 
it  may  be  expedient  in  order  to  avoid  certain  evils ;  in  short, 
it  may  be  right  to  give  the  right  of  contracting  for  unborn 
generations,  if  the  sovereign  power  inherent  in  society  de- 
clares it  to  be  right,  but  it  involves  an  absurdity  if  this  sov- 
ereign power  itself  is  the  object.  For  the  object  of  the  phi- 
losopher was  to  establish  legality  and  the  right  of  demanding 
obedience  on  the  side  of  the  authority  by  mutual  consent, 
which,  therefore,  is  the  first  foundation  of  the  authority,  and 
yet  here  some  persons  do  establish  an  authority  which  shall 
have  power  without  the  consent  of  some.  The  assertion  that 
the  original  contractors  represent  the  unborn  generations,  is 
an  unmeaning  evasion,  for  that  which  is  not  cannot  be  repre- 
sented. If  we  nevertheless  use  this  phrase,  it  has  significance 
only  so  far  as  a  positive  law  gives  meaning  to  it,  but  other- 
wise it  has  none.  Moreover,  the  idea  of  representation  in  the 
first  contractors  is  again  a  contradiction,  because  representa- 
tion requires  previous  arrangement,  legalization.  How  could 
my  forefather  contract  away  my  absolute  freedom?  To  keep 
then  the  state  in  existence,  it  would  be  necessary  to  repeat 
this  contract  from  time  to  time,  say  every  twenty  years.  In 
the  mean  time,  no  one  that  had  been  born  after  his  father  had 
consented  to  it,  and  before  he  personally  had  consented  to  it 
himself,  would  be  amenable  to  the  laws.  To  be  sure,  accord- 
ing to  the  believers  in  a  primordial  state  of  nature,  we  should 
have  the  right  to  molest,  torment,  or  kill  them  like  wild 
beasts.  Perhaps  it  might  be  proposed  that  they  should  wear 
a  distinguishing  mark,  a  cap  of  dog-skin,  as  the  enslaved 
helots  were  forced  to  do  by  the  Spartans.'     It  would  be  for 


*  [This  dog-skin  cap,  however,  was  no  otlier  than  the  ancient  head-covering, 
worn  liy  Laertes  in  the  Odyssey  and  by  the  Arcadians.  The  compulsion  was  the 
grievance.     See  Miiller,  Dorier,  ii.  40.] 


294 


THE  STATE. 


the  benefit  of  those  natural  men,  to  show  that  no  constable 
had  any  right  to  seize  them,  and  for  the  artificial  men  or  citi- 
zens, that  they  might  raise  the  hue  and  cry  as  soon  as  such  a 
political  non-juror  showed  himself.  In  what  a  state  of  things 
all  society  would  be  thrown  every  twenty  years,  when  the 
contract  must  be  renewed  !  All  property  at  an  end,  all  insti- 
tutions broken  up,  all  lives  at  the  disposal  of  every  one,  all 
law  dissolved,  every  one  a  perfect  Adam  in  right  and  might, 
everything  and  every  one  belonging  to  every  one — a  state  of 
savageness  with  all  the  horrors  of  a  dense  population  and 
minds  refined,  stirred,  and  excited  by  civilization,  \yithout  the 
restraint  and  moderation  of  law,  simultaneously  and  corre- 
spondingly developed.  And,  after  the  contract  should  have 
been  renewed,  what  hunting  down  and  killing  of  the  non- 
contractors  !  The  new  state  must  needs  begin  with  offering 
a  reward  for  the  head  of  every  non-conformist,  as  now  we 
offer  a  pound  for  a  wolf-skin  or  some  shillings  for  a  crow's 
head ;  or,  as  of  old,  a  price  was  offered  for  a  dead  Indian. 
For  it  is  evident  we  have  no  right  whatever  to  judge  by  our 
laws  the  proud  non-contractor  who,  in  the  full  consciousness 
of  his  natural  lordship  and  absolute  freedom,  spurns  the  idea 
of  becoming  an  abject  contractor.  As  to  relations  with  other 
nations,  we  should  acknowledge  piracy  as  the  only  one ,  for 
have  they  signed  our  bond,  have  we  theirs?  Can  any  state 
of  physical  and  mental  progressive  development  of  our 
society  or  nation  be  imagined  under  these  circumstances  ? 

It  is  surprising  that  these  necessary  consequences  of  the 
theory  of  the  contract,  which  would  be  precisely  as  I  have 
represented  them,  have  not  shown  before  the  untenableness 
of  this  theory.  Indeed,  it  actually  led  a  great  statesman  to 
perceive,  in  a  measure,  its  consequences,  for  he  says,  in  one 
of  his  letters,  that,  properly  speaking,  the  contract  ought  to 
be  renewed  from  time  to  time.  How  long  ought  the  bind- 
ing period  to  last  ? 

I  repeat,  then,  the  state  exists  by  necessity;  not  this  or  that 
particular  state,  which  has  been  modified  by  a  thousand 
favorable   or    untoward    conditions,    geographical,  historical, 


THEOCRATIC   THEORY.  295 

social,  religious,  or  scientific ;  but  always  does  the  state  exist, 
however  corrupt  or  pure. 

XCV.  A  iow  words  on  the  other  theories  of  the  origin  of 
governments,  mentioned  above.  Sir  Robert  Filmer,  who  died 
about  1688,  wrote  a  work,  Patriarchs,  published  in  1680,  in 
which  he  derives  all  authority  from  the  fact  that  Adam,  the 
first  monarch,  was  likewise  absolute  master  of  his  children  ; 
hence  the  people  are  naturally  and  from  their  births  subject 
to  their  princes,  when  the  monarch  comes  to  be  separated 
from  the  natural  father.  Whitaker  again  started  this  theory, 
about  fifty  years  ago,  and,  strange  to  say,  not  without  attract- 
ing some  attention.  Let  us  associate  the  name  of  Filmer 
rather  with  the  fact  that  he  wrote  at  so  early  a  period  against 
witch  trials,  than  with  this  more  than  untenable  theory.  Men 
like  Filmer  saw  that  by  the  absolute  contract  it  is  impossible 
to  gain  a  sure  foundation  for  political  authority,  and  therefore 
sought  for  a  natural  foundation  of  power,  committing,  how- 
ever, in  turn,  the  common  mistake  of  confounding  power, 
government,  and  state. 

Others  explain  the  origin  of  the  state  on  theocratic  grounds. 
All  government,  according  to  them,  descends  from  the  priest, 
that  is,  the  authority  of  God  proclaimed  by  the  priest,  or, 
all  political  relations  originate  from  religion,  the  primary 
and  fundamental  relation  of  all  society.  It  is  a  view  which, 
incredible  as  it  may  sound,  has  found,  of  late,  again  some 
prominent  advocates.  I  have  already  answered  this  theory : 
religion  is  not  justice,  the  church  is  not  the  state.  The  fact 
that  we  find  the  character  of  the  priest,  father,  and  ruler 
blended  in  the  rudest  stages  of  society,  if  we  choose  to  call 
sacrificing  for  the  family,  distinct  priesthood,  and  giving  rules 
for  the  house,  ruling,  is  no  proof  that  the  state  originated  on 
theocratic  grounds.  There  can  be  no  doubt  but  that  those 
primitive  rulers  were  likewise  the  butchers  and  cooks  for 
their  family  or  little  clan.  Is  it  on  that  account  philosophical 
to  say  all  monarchy  and  civil  government  are  derived  from 
butchery  or  cookery  ? 


296 


THE  STATE. 


XCVI.  Finally,  some  give  as  the  origin  of  the  state,  force 
alone.  They  say,  force  makes  right,  which  is  about  as  true 
as  that  negative  makes  positive. 

Many  states  have  been  conquered,  usurpers  have  estab- 
lished dynasties  of  flourishing  kingdoms  ;  but  because  they 
have  done  so  it  is  not  proved  that  they  originated  or  consti- 
tuted the  state.  This  confusion  of  ideas,  however,  has  been 
mentioned  already. 

Charles  Louis  von  Haller  has  acquired  notoriety  by  his 
work  entitled  Restoration  of  Political  Science,  or  Theory  of 
the  natural-social  State  opposed  to  the  Chimera  of  the  arti- 
ficial-civil State  (1820).  The  substance  of  his  theory  is  this, 
that  the  government  over  men  depends  upon  the  will  of  God, 
and  is  known  by  natural  (that  is,  physical)  superiority  (power), 
excluding  therefore  the  jural  principle.  According  to  him, 
the  prince  is  before  the  people,  as  the  master  is  before  the 
slave. 


CHAPTER    IX. 

View  of  the  Origin  and  Character  of  the  State  in  the  Middle  Ages. — Dante. — 
Thomas  More, — Bodinus. — The  Netherlands  first  proclaim  broadly  that  Mon- 
archs  are  for  the  Benefit  of  the  People,  and  may  be  deposed. — The  Develop- 
ment of  the  Idea  of  the  Sovereignty  of  the  People  owing  to  the  Jesuits. — 
William  Allen. — Persons. — Bellarmin. — Jesuits  defend  Regicide  under  certain 
Circumstances.  —  Mariana.  —  Suarez. —  Luther. — Calvin.  —  Bacon.  —  English 
Revolution  a  great  Period  for  liberal  Ideas  in  Politics. — Puffendorf. — Leib- 
nitz.— Montesquieu. — Hume. — Quesnay. — Turgot  and  Malherbes. — Mably. — • 
Adam  Smith. — Blackstone. — Delolme. — Bentham. — Hallam. — Revolution  of 
1830. 

XCVII.  The  views  which  the  ancients  took  of  the  origin 
of  the  state  have  been  briefly  mentioned,  and  I  shall  return  to 
the  subject.  The  state  of  things  in  the  middle  ages  was  such 
that  political  law  could  not  be  expected  to  be  much  cultivated. 
Views  derived  from  the  Old  Testament,  combined  with  the 
overspreading  system  of  the  church,  and  the  religious  princi- 
ple as  one  of  the  most  active  agents  in  all  public  life  in  those 
periods,  very  naturally  stood  in  the  way  of  free  inquiry  into 
the  elements  of  political  law.  The  theory,  however,  differed 
more  from  practice  during  the  middle  ages  than  probably  at 
any  other  period.  On  the  one  hand  it  was  insisted  upon  that, 
as  it  is  said  in  Proverbs  viii.  15,  "  Per  me  reges  regnant,"  per- 
fect obedience  is  due  to  the  monarchs,  so  long  as  they  are 
faithful  to  the  orthodox  church ;  on  the  other  hand,  mon- 
archs were  nearly  all  the  time  contending  with  their  vassals. 

Dante's  De  Monarchia  can  hardly  be  mentioned  here. 
Machiavelli  touches  upon  many  subjects  relating  to  the  state 
in  his  History  of  Florence,  his  Discourses  on  the  First  Dec- 
ade of  Livy,  and  his  Prince.  He  was  a  man  of  most  un- 
common and  penetrating  inind;''  but  we  cannot  enumerate 


»  This   powerful  and   grasping  mind  is,  in  my  opinion,  greatly  misunderstood 
by  a  vast  majority  of  all  who  know  of  his  name.     I  may  be  excused,  therefore, 

297 


298  THE  STATE. 

him  with  propriety  among  those  who  have  directly  promoted 
pubh'c  or  political  law.  Chancellor  Sir  Thomas  More  (Morus) 
attracted  much  attention  by  his  Utopia,  in  which-many  ques- 
tions of  the  highest  importance  to  the  citizen  are  discussed  in 
a  spirit  far  in  advance  of  his  time.  Thomas  More  recom- 
mended, under  Henry  VIII.,  perfect  freedom  of  conscience, 
which  was  a  thing  absolutely  unknown  then  and  for  centuries 
afterwards.  Joannes  Bodinus  or  Bodin,  a  Frenchman,  who 
was  member  of  the  States-General  assembled  at  Blois  in  1576, 
wrote  Six  Livrcs  de  la  Republiquc,  also  in  Latin,  a  work  of 
much  merit,''  which  to  this  day  will  not  be  studied  without 
great  profit,  though  it  is  affected  by  that  peculiar  and  deceiv- 
ing reasoning  from  analogy  and  on  similes  which  continued 
to  influence  the  minds  even  of  very  superior  men  long  after 
this  writer,  and  cannot  be  said  to  have  vanished  entirely  even 
in  our  days,  though  the  reform  produced  by  Bacon  has  had  a 
strong  tendency  to  rend  these  tissues  of  false  ratiocination.^ 
Thus,  Bodin's  sixth  book  speaks  of  the  distributive,  commu- 
tative, and  harmonic  justice,  shows  that  "royal  monarchy" 
is  harmony,  and  goes  on  to  speak  of  the  octave,  fifth,  and 
third  in  the  state.  This  disposition  to  reason  by  analogy, 
and  desire  of  finding  the  system  and  order  of  one  thing  always 
reflected  in  another,  and  fondness  for  logical  symmetry — a 


for  i-eferring  to  the  article  on  him  in  the  Encyclopedia  Americana,  where  I  have 
indicated  my  opinion  of  this  great  man. 

'  Les  Six  Livres  de  la  R^publique  de  J.  Bodin,  Angevin,  Paris,  1580.  (There 
is  in  the  Congress  library  at  Washington  a  copy  of  this  date,  which  has  belonged 
to  Mr.  Jefferson,  with  pencil-marks  by  his  hand.)  See  Introduction  generale  ^ 
I'Histoire  du  Droit,  par  M.  Lerminier,  Avocat  a  la  Cour  royale  de  Paris,  1S29, 
chap.  V. 

2  As  an  instance  may  be  mentioned  the  Monarchy  of  Man,  by  Sir  John  Eliot, 
appended  to  his  life  by  John  Foster,  in  the  second  volume  of  British  Statesmen,  in 
Lardner's  Cabinet  Cyclopjedia.  Nor  are  Sydney's  writings  at  all  free  from  this 
analogic  train  of  ideas.  Astrology,  with  all  its  macrocosm  and  microcosm,  had, 
of  course,  a  most  powerful  influence.  I  repeat  for  the  youthful  and  ardent  student, 
that  too  much  cai-e  cannot  be  taken  against  confounding  illustration  with  argu- 
ment, the  explanation  with  the  basis.  Quite  different  from  misleading  and 
seducing  analogy  is  the  zealously  tracing  out  the  same  principle  in  apparently 
or  really  different  spheres.     It  is  a  delightful  employment  of  man's  mind. 


MANIFESTO    OF  THE  DUTCH. 


299 


desire  correct  in  its  origin,  namely,  to  find  a  harmony  and 
correspondence  in  all  things — strangely  induced  men  to  con- 
found all  departments,  or,  which  amounts  to  the  same  thing, 
was  in  the  way  of  properly  separating  them. 

The  commission  by  which  Columbus  was  appointed  Ad- 
miral of  the  Indies,  and  which  contains  the  agreement  be- 
tween the  monarch  of  Spain  and  himself  regarding  the  ex- 
pected profits,  as  recorded  in  the  Codice  Diplomatico  (page 
47,  et  seq.)  already  mentioned,  begins  with  a  purely  theological 
declaration  and  essay  on  the  Holy  Trinity,  the  Virgin  Mary, 
St.  James,  etc.  It  then  treats  of  the  order  of  things,  the  vicars 
of  God  (monarchs),  with  a  discussion  on  the  different  species 
of  justice,  on  three  closely-printed  pages,  without  any  connec- 
tion or  reference  whatever  to  the  main  subject. 

XCVIII.  "  That  mysterie,  the  prerogative  of  kings,  which 
is  a  point  so  tender  as  it  will  hardly  bear  mention,"  as  the 
noble  Eliot  wrote  in  the  Tower  (page  134  of  the  work  men- 
tioned in  the  last  note),  when  imprisoned  as  the  devoted 
advocate  of  a.  pure  cause,  was,  nevertheless,  frequently  eluci- 
dated by  the  light  of  discerning  minds,  at  an  early  period. 
Thus,  there  are  some  powerful  sentences  in  Bracton.  Yet 
the  principle  that  monarchs  are  for  the  benefit  of  the  people, 
and  may  be  deposed  if  palpably  and  perseveringly  opposed 
to  their  interest,  was  for  the  first  time  distinctly  proclaimed 
and  boldly  acted  out,  in  modern  times,  on  a  broad  scale, 
when  the  Netherlands  declared  themselves  independent  of 
the  crown  of  Spain. 

The  manifesto  of  the  Utrecht  Union,  dated  Hague,  July  26, 
1 58 1,  against  the  king  of  Spain,  says  that  a  prince  is  placed 
by  God  over  his  subjects  to  protect  and  watch  over  them, 
and  that  the  subjects  are  not  made  for  the  benefit  of  the 
prince,  to  do  slave  service  unto  him,  but  the  prince  is  made 
for  the  sake  of  the  subjects,  without  whom  he  is  no  prince,  to 
rule  them  fairly  and  paternally.  If  he  neglect  this,  he  must 
be  considered  not  a  ruler,  but  a  tyrant,  and  in  this  case  the 
subjects,  and  their  representatives  the  estates,  have  the  right 


300 


THE  STATE. 


to  place  some  one  else  for  their  protection,  especially  after 
they  have  fruitlessly  attempted  to  turn  him  from  his  tyran- 
nical measures,  and  if,  therefore,  they  have  no  other  means  of 
protecting  their  native  liberty,  for  which  they  shall,  according 
to  the  laws  of  nature,  pledge  their  lives  and  all  they  possess.' 
But  the  development  of  this  just  idea  into  a  theory  was  des- 
tined to  come  from  a  quarter  from  which  it  might  have  least 
been  expected — from  the  Jesuits,  one  of  the  fundamental  prin- 
ciples of  whose  constitution  was  absolute  obedience  to  the 
pope.  Thus  it  was  this  very  absolute  obedience  to  the  pope, 
and  the  absolute  supremacy  of  the  true  church,  that  is,  of  the 
Roman  Catholic  church,  over  all  temporal  government,  which 
led  them  to  the  theory  of  the  sovereignty  of  the  people. 

The  English  monarch  had  been  declared  supreme  head  of 
the  Anglican  church.  William  Allen,  a  Jesuit,  consequently 
declares  in  his  writing.  Ad  Persecutores  Anglos  pro  Christianis 
Responsio  (1582),  "Si  reges  deo  et  dei  populo  fidem  datam 
fregerint,  vicissim  populo  non  solum  permittitur,  sed  etiam  ab 
eo  requiritur  ut  jubente  Christi  vicario,  supremo  nimirum 
populorum  omnium  pastore,  ipse  quoque  fidem  datam  tali 
principi  non  servet."  Persons,  or  Parsons,  another  English 
Jesuit  of  the  time,  adheres  to  the  same  principle,  for  instance, 
in  his  Andreae  Philopatri  ad  Elizabethae  Reginae  Edictum 
Responsio.^  The  distinguished  Bellarmin  adopted  these 
views,  and  while  he  maintains,  on  the  one  hand,  that  the 
pope  is  supreme  to  all,  to  the  council  of  the  church  and 
monarchs,  whom,  if  religion  require  it,  he  may  rightfully  de- 


'  The  whole  manifesto  in  Meteren,  History  of  the  Netherlands,  f.  185,  et  seq. 

2  If  a  monarch  forsakes  the  Catholic  religion,  to  which  he  is  bound  by  his 
baptismal  vow  and  coronation  oath,  the  subjects  must  drive  him  away.  No.  162: 
"  Non  tantum  licet,  sed  summa  etiam  juris  divini  necessitate  ac  prjecepto,  imo 
conscientise  vinculo  arctissimo  et  extremo  animaram  suarum  periculo  ac  dis- 
crimine  christianis  omnibus  hoc  ipsum  incnmbit,  si  pryestare  rem  possunt."  No. 
160  :  "Incumbit  verotum  maxima,  .  .  .  cum  res  jam  ab  ecclesiaac  supremo  ejus 
moderatore,  pontifice  nimirum  Romano,  judicata  est :  ad  ilium  enim  ex  officio 
pertinet  religionis  ac  divini  cultus  incolumitati  prospicere  et  leprosos  a  mundis 
ne  inficiantur  secernere." — See  the  Biographia  Britannica  respecting  the  life  of 
Persons. 


THE   JESUITS. 


\0\ 


pose  (see,  for  instance,  his  De  Conciliorum  Autoritate,  c.  17, 
and  De  Romano  Pontifice,  v.  iii.),  he  distinctly  lays  down,  on 
the  other  hand,  that  "  Jus  divinum  nulli  homini  particular! 
dedit  hanc  potestatem  :  ergo  dedit  multitudini :  igitur  potestas 
totius  est  multitudinis."  And  Mariana,  one  of  the  most  dis- 
tinguished Jesuit  writers,  says,  "  Neque  respublica  ita  in  prin- 
cipem  jura  potestatis  transtulit,  ut  non  sibi  majorem  reservarit 
potestatem."  And  Mariana  was  a  Spaniard  too.  So  willing 
are  people  to  acknowledge  any  theory  which  is  favorable  to 
the  objects  next  in  view — at  that  time  the  deposition  of  Eliza- 
beth, and  in  France  the  dethronement  of  Henry  III.  The 
combination  is  as  singular  as  that  the  Belgian  Catholics,  who 
so  long  assisted  the  princes  in  their  attempts  to  subdue  the 
free  Dutch,  and  were  always  for  monarchy  opposite  to,  the 
republican  Dutch,  did  lately  profess  the  utmost  liberal  polit- 
ical views,  in  conjunction  with  the  strictest  Roman  religious 
professions,  far  too  ultra-rom.an  for  most  other  Catholics, 
merely  because  opposed  to  the  Protestant  Dutch. 

But  the  Jesuits  went  farther:  they  maintained  the  lawful- 
ness of  regicide  if  a  tyrant  or  perverse  heretic  has  possession 
of  the  throne.  Those  Catholics  who  professed  that  obedience 
is  due  to  a  lawful  prince,  though  a  heretic,  were  styled  by 
them  royalists  and  most  severely  attacked.  See  for  instance 
Roswede,  De  Fide  Haeret.  servanda,  Antwerp,  16 10.  The 
University  of  France  reproached  the  Jesuits,  in  1626,  with 
having  produced  thirty  authors  who  had  preached  disobe- 
dience to  the  prince  if  the  pope  orders  it,  and  even  regicide, 
because  he  is  no  longer  king  after  excommunication.  Suarez, 
Defensio  Fidei  Catholicse,  lib.  b.  c.  4,  Col.,  1614,  says,  "  Posse 
regem  privari  regno,  etiam  ilium  interficiendo.  ...  Si  papa 
regem  deponat,  ab  illis  poterit  expelli  vel  interfici,  quibus 
ipse  id  commiserit.  .  .  .  Nam  rex  ipse  jam  non  est  rex,  etc." 
Mariana,  Heissius  (Ad.  Aphorismos  Doctrinae  Jesuitar.  De- 
clarat.  Apolog.,  Ingolstadt,  1609),  Vasquez,  Cotton,  Molina, 
Keller,  Lessius,  Ribadeneyra,  De  las  Salas,  and  numerous 
others,  too  many  to  be  mentioned  here,  are  of  the  same 
opinion. 


202  THE  STATE. 

It  is  a  remarkable  fact  that  when  the  three  French  estates 
were  met  in  diet,  in  1614,  the  third  estate  proposed  a  law  ac- 
cording to  which  the  king  should  be  declared  to  possess  his 
right  of  God,  and  that  no  one  has  a  right  to  absolve  his  sub- 
jects of  their  allegiance,  upon  which  every  officer  should 
take  an  oath,  and  that  the  clergy  and  after  them  the  nobility 
opposed  this  proposition,  because,  as  Cardinal  du  Perron  said, 
subjects  are  free  of  their  allegiance  if  the  king  becomes  a 
heretic,  adopts  the  religion  of  Mahomet  or  the  doctrine  of 
Arius.  And  this  was  after  Henry  IV.  had  been  murdered  by 
Ravaillac  in  1610.  It  was  precisely  the  same  contest  which 
obliged  the  English  to  insert  in  their  declaration  of  right  the 
oath  forswearing  "  that  damnable  doctrine  and  position,  that 
princes  excommunicated  or  deposed  by  the  pope,  or  any 
authority  of  the  see  of  Rome,  may  be  deprived  or  murdered 
by  their  subjects,  or  any  other  whatsoever,  etc." 

Luther,  born,  bred,  and  living  in  a  monarchy,  having  to 
contend  with  various  popular  religious  excesses,  from  an 
early  period  of  the  Reformation,  and  witnessing  a  sanguinary 
civil  war  (the  peasant  war),  discarded  all  idea  of  making  the 
extent  or  duration  of  obedience  to  the  magistracy  dependent 
in  any  way  upon  popular  will.  It  seems  in  his  writings  that 
the  idea  of  magistracy  presented  itself  to  his  mind  solely,  and 
probably  unconsciously  to  him,  under  the  form  of  unlimited 
monarchy.  He  demanded  almost  unlimited  obedience  to  the 
monarch  in  all  civil  matters,  because  he  strictly  severed  re- 
ligion from  temporal  government.  This  is  his  reason.  It 
was  different  with  Calvin.  Living  in  a  republic  as  he  did, 
and  in  a  small  community,  in  which  naturally  and  necessarily 
the  various  spheres  of  public  action  do  not  present  themselves 
as  strictly  separated  from  one  another  as  they  may  do  in 
larger  empires,  he  infused  in  his  writings  more  of  a  repub- 
lican spirit,  and  a  desire  to  have  the  state  influenced  by  re- 
ligious fervor.  Hence  his  followers  in  Holland,  England,  and 
Scotland  did  the  same.  Calvin  relates  in  the  preface  to  his 
first  catechism — not  the  well-known  little  Geneva  catechism 
— that  he  labored  to  induce  the  senate  publicly  to  acknowl- 


LUTHER  AND    CALVIN.  303 

edge  it.  He  succeeded,  and  the  citizens  of  Geneva  were 
called  upon,  ten  by  ten,  to  take  their  oath  upon  it.  "  This 
action,"  adds  Mr.  Henry,  "  may  be  considered  as  the  founda- 
tion of  the  later  theocratic  government.  The  citizens  took 
the  oath  upon  this  confession  as  citizens,  and  he  who  opposed 
it,  openly  or  not,  was  liable  to  civil  and  ecclesiastic  penalty." ' 
When  Calvin  settled  at  Geneva,  the  city  was  already  rent  by 
religious  parties  and  disturbed  by  great  commotions,  which 
naturally  influenced  Calvin's  actions. 

We  have  seen  what  the  doctrine  of  the  Jesuits  was  respect- 
ing heretical  princes.  The  Puritans,  regarding  episcopacy 
with  passionate  aversion,  so  that  it  appeared  to  them  one  of 
the  worst  species  of  heresies,  maintained  similar  views  as  to 
heretical  monarchs,  though  they  did  not  agree  with  the 
Jesuits  as  to  the  lawfulness  of  regicide  or  tyrannicide.  One 
of  their  writers,  supposed  to  have  been  Lord  Keeper  Pucker- 
ing, says,  "  that  all  persons,  as  well  as  meaner  persons,  must 
willingly  be  ruled  and  governed,  and  must  obey  those  whom 
God  has  set  over  them,  that  it  is  the  just  authority  of  eccle- 
siastical magistrates,  and  must  lick  the  dust  off  the  feet  of 
the  church.  That  her  majesty,  being  a  child  of  the  church, 
is  subject  to  censures  of  excommunication  by  their  elderships 
as  well  as  any  other  people.  That  no  man  ought  to  aid, 
comfort,  salute,  or  obey  an  excommunicated  person  ;  and 
that  as  long  as  any  person  is  excommunicated,  he  cannot 
exercise  the  magistracy."  (Brodie,  vol.  i.  page  140,  etc., 
where  the  notes  are  especially  interesting  and  important.) 
The  Covenanters  and  Presbyterians  held  similar  views.  It 
was  observed  at  the  time  that  their  writers,  Knox,  Buchanan, 
Goodman,  and  others,  singularly  coincided  in  some  mo- 
mentous principles  with  the  Jesuits.     Collier,  ad  an.  1638.=' 

'  Page  175,  vol.  i.  of  the  Life  of  John  Calvin,  the  great  Refomier,  by  Taul 
Henry,  Pastor  in  Berlin,  Hamburg,  1 835.  In  German.  Mr.  Henry  has  made 
use  of  MSS.  and  unprinted  letters  of  Calvin's  in  the  libraries  of  Geneva  and 
Zurich.  Altogether  the  work  is  the  production  of  great  industry.  The  whole 
peculiar  position  of  Geneva  during  the  beginning  of  the  Reformation  may  be 
seen  from  page  136  et  seq. 

»  See  an  interesting  notice  of  various  Puritan  and  Presbyterian  writers  on  this 


304 


THE  STATE. 


The  difference  between  Luther  and  Calvin,  as  to  the  points 
mentioned,  is  this:  The  German  reformer,  granting  the  fullest 
possible  temporal  power  to  the  state,  claimed  full  liberty  in 
religious  matters,  and  he  almost  alone  in  his  whole  age 
stands  forth,  as  we  have  seen,  an  enemy  to  religious  persecu- 
tion, acting  on  principles  which  but  centuries  later  became 
acknowledged.^  Calvin,  striving  to  unite  religion  and  politics, 
makes  religion  absorb  everything,  and  the  church,  that  is,  the 
ministers  with  the  "  saints,"  nearly  supersede  the  state.  Hence 
every  deviation  from  the  strict  Calvinistic  doctrine  appeared 
to  his  followers  as  a  state  offence;  hence  the  deep-rooted 
spirit  of  exclusiveness  in  his  followers,  for  a  long  period  in 
history. 

XCIX.  However  erroneous  and  dangerous  for  the  peace  of 
society  these  views  were,  they  nevertheless  aided  in  arriving 
at  the  point  that  there  is  a  principle  above  the  monarch, 
that  his  right  is  not  personally  inherent,  but  only  officially 
vested  in  him,  and  that  the  tie  between  prince  and  subjects  is 
not  absolute  and  indissoluble.  Bacon,  who  contributed  essen- 
tially to  a  restoration  of  science  and  threw  so  much  light  on 
various  branches  of  knowledge  by  his  De  Augmentis  Scien- 
tiarum,  treats  of  political  science,  especially  in  the  third  chapter 
ofthe  eighth  book.  (Comp.  Hallam,  Hist,  of  Lit,  iii.  192.)  But 
treasures  are  likewise  contained  in  his  Historia  Regni  Henrici 


subject  in  Hallam,  Constitutional  History  of  England,  vol.  i.,  note  to  pages  254 
and  255,  and,  indeed,  the  whole  of  chapter  iv.  of  that  volume. 

»  Bancroft  justly  acknowledges  this  honorable  trait  in  Luther,  the  opposite 
opinion  of  most  English  writers  to  the  contrary.  See  note  3  to  page  274,  vol.  i. 
of  History  of  the  United  States,  by  George  Bancroft,  2d  ed.,  Boston,  1837.  It 
is  very  remarkable  that  so  few  English  authors,  even  of  the  best,  have  elevated 
themselves  to  a  sufficiently  high  historic  eminence,  so  as  to  view  Luther  wholly 
and  fully,  as  one  of  the  architects  of  history.  His  unbecoming  dispute  with  Henry 
VHL  has  so  powerfully  directed  the  attention  of  the  English  to  the  asperities  in 
Luther's  character,  rather  than  to  his  greatness,  that  to  this  day  they  have  not 
freed  themselves  of  the  effect.  The  occasional  coarseness  of  Luther  is  not  so 
indifferent  as  many  of  his  admirers  seem  to  believe,  for  it  materially  injured  the 
cause  of  the  Reformation  :  yet  it  is  impossible  not  to  prefer  the  violence  of  Luther's 
words  to  the  sharpness  of  Calvin's  doctrines  respecting  heretics. 


BACON,  GROTIUS.  305 

VII.,  Sermones  fideles  de  Saplentia  Veterum,  Dialogus  de 
Bello  Sacro,  and  In  felicem  memoriam  Elizabethae,  Angliae 
reginae.  The  people  now  gain  greater  and  greater  promi- 
nence. He  says,  in  the  above  chapter, "  All  who  have  written 
on  laws  have  either  treated  their  subject  as  philosophers  or 
jurists.  But  the  philosophers  propose  many  fine-sounding 
but  unpractical  (ab  usu  remota)  things.  The  lawyers,  on  the 
other  hand,  are  so  entirely  possessed  by  the  laws  of  their 
country,  or  the  Roman  or  the  canon  law,  that  they  do  not 
use  candid  judgment,  but  argue  as  if  in  fetters.  Indeed,  this 
knowledge  is  properly  a  matter  of  statesmen,  who  know  best 
the  wants  of  human  society,  the  welfare  of  the  people,  natural 
equity,  the  customs  of  nations  and  the  various  constitutions, 
and  who,  therefore,  are  able  to  decide  concerning  the  laws 
according  to  the  principles  and  precepts  both  of  natural  equity 
and  political  wisdom." '  Remembering  that  a  lawyer  and 
philosopher  wrote  this  very  passage,  we  shall  all  agree  with 
it,  if  not  hastily  misconstrued. 

Hugo  Grotius  became  about  the  same  time  the  founder  of 
international  law,  especially  by  his  work  De  Jure  Belli  ac 
Pacis.^     In  the  mean  time  had  begun  in  England  the  strug- 


i"Qui  de  legibus  scripserunt,  omnes,  vel  tanquam  philosophi,  vel  tanquam 
jurisconsulti,  argumentum  illud  tractaverunt.  Atque  philosophi  proponunt  pul- 
chra,  sed  ab  usu  remota.  Jurisconsulti,  autem,  suk  quisque  patriae  legum,  vel 
etiam  Romanarum,  aut  Pontificiarum,  placitis  obnoxii  et  addicti,  judicio  sincere 
non  utuntur,  sed  tanquam  e  vinculis  sermocinantur.  Certe  cognitio  ista  ad  viros 
civiles  proprie  spectat,  qui  optime  norunt  quid  ferat  societas  humana,  quid  salus 
populi,  quid  cequitas  naturalis,  quid  gentium  mores,  quid  rerum  publicarum 
formce  diversse ;  ideoque  possint  de  legibus,  ex  principiis  et  prxceptis,  tarn  sequi- 
tatis  naturalis,  quam  politices,  decernere." 

This  "  e  vinculis  sermocinari"  is  an  uncommonly  fine  and  true  expression. 
Every  professional  man,  whatever  his  profession  be,  ought  to  remember  it.  The 
previous  parts  of  this  work,  however,  will  have  sufficiently  shown  howdespicalile 
the  author  holds  all  endeavors  to  persuade  the  people  that  wisdom  in  politics  comes 
intuitively,  without  industry,  without  earnest  application,  and  is,  as  it  were,  a 
species  of  knowledge  belonging  particularly  to  ignorance. 

«  *  This  great  writer,  and,  what  is  more,  great  citizen  and  great  man,  has 
been  depreciated  by  minds  infinitely  below  him  in  grasp,  power,  learning,  acu- 
men, and  philosophic  architecture  (for  instance  Paley,  preface  to  his  Moral  and 
Political  Philosophy).     This  is  not  the  place  to  show  how  decidedly  that  great 


20 


305 


THE  STATE. 


gle  between  prerogative  and  the  authority  of  law.  Ther 
appeared  those  great  men,  Selden,  Eliot,  Pym,  Hampden 
who  fought  a  good  fight  for  all  civilized  mankind.  Respect- 
ing this  whole  period  I  recommend  especially  Brodie,  Hal- 
lam,  and  Mackintosh  on  the  Revolution  of  1688,  as  well  as 
Guizot's  History  of  the  English  Revolution  from  Charles  I. 
to  James  H.  An  eminent  writer  who  distinguished  himself 
by  the  liberal  views  he  took  of  several  important  political 
subjects  so  much  disrelished  at  his  time,  was  Hooker,  in  his 
Ecclesiastical  Polity,  especially  in  the  eighth  book.  The 
views  of  this  worthy  author  on  the  origin  of  government  are 
so  far  correct  as  he  derives  it  originally  from  consent,  but  he 
deduces  from  this  consent  the  contract,  which,  of  course,  mis- 
led him,  as  so  many  others,  to  erroneous  conclusions.  This 
eighth  book  is  read  by  fewer  still,  than  the  first  books  of 
the  Ecclesiastical  Polity,  yet  is  even  now  fully  worthy  of 
a  perusal. 

Hobbes  has  been  mentioned  already.  Puffendorf,  who  does 
not  follow  Hobbes's  idea  of  men's  warring  against  one 
another  in  their  supposed  natural  state,  makes  the  innate  de- 
sire of  man  for  society  the  foundation  of  the  family,  from 
which,  by  three  different  contracts,  the  state  is  formed.  Leib- 
nitz declared  himself  against  natural  law  as  then  taught ;  he 


mind  affected  all  successive  periods  to  our  own  times,  and  how  millions  and 
millions  have  enjoyed  the  civilizing  fruits  of  his  work  even  in  the  fearful  periods 
of  war,  unconscious  to  them.  It  would  form  a  peculiarly  fine  subject  for  an 
essay  ;  but  I  cannot  conclude  this  note  without  mentioning,  likewise,  that  so 
prominent  a  writer  as  Sir  James  Mackintosh  has  paid  him  a  befitting  tribute  in  his 
Discourse  on  the  Study  of  the  Law  of  Nature  and  Nations.  I  wish  I  had  room 
enough  to  copy  the  whole  passage.  I  have  not,  but  I  beg  to  quote  at  least  a  few 
lines  of  it.  Grotius  is  blamed  for  having  quoted  poets,  etc.  Mackintosh  says, 
"  But  where  are  those  feelings  and  that  judgment  recorded  and  observed  ?  In 
those  very  writings  which  Grotius  is  gravely  blamed  for  having  quoted.  The 
usages  and  laws  of  nations,  the  events  of  history,  the  opinions  of  philosophers, 
the  sentiments  of  orators  and  poets,  as  well  as  the  observation  of  common  life, 
are,  in  truth,  the  materials  out  of  which  the  science  of  morality  is  formed  ;  and 
those  who  neglect  them  are  justly  chargeable  with  a  vain  attempt  to  philo-^ophize 
without  regard  to  fact  and  experience,  the  sole  foundations  of  all  true  phi- 
losophy." 


MONTESQ  UIE  U.  307 

considered  Hobbes's  and  Puffendorf's  theories  as  but  fanciful 
dreams.  Of  Filmer  we  have  spoken,  and  we  have  seen  how 
Locke  followed  Puffendorf  in  the  first  important  points.  Al- 
gernon Sidney  and  Milton  adopted  the  idea  of  the  contract, 
and  founded  upon  it  the  sovereignty  of  the  people.  Rousseau, 
in  his  Social  Contract,  adopts  likewise  the  original  contract, 
but  the  step  he  made  was  this,  that  he  declared  the  sover- 
eignty of  the  people  inalienable,  so  that  the  people  in  a  mon- 
archy remain  still,  in  the  aggregate,  the  sovereign.  Soon 
after  the  declaration  of  independence  of  the  United  States, 
another  important  era  in  political  history  ensued.  The  sov- 
ereignty of  the  people  was  pronounced,  and  not  long  after 
declared  by  the  first  French  revolution. 

Important  in  the  literature  of  political  law  is  Montesquieu, 
on  account  of  his  works,  the  Spirit  of  the  Laws,  Considera- 
tions on  the  Increase  and  Downfall  of  the  Roman  State,  and 
his  Persian  Letters.  Bodin,  Machiavelli,  and  the  English 
authors  lent  him  many  ideas,  though  he  has  not  mentioned 
them.  His  works,  especially  the  first,  are  replete  with  shrewd 
and  not  unfrequently  profound  remarks  ;  but  sometimes  his 
brilliancy  blinds,  and  the  actual  truth  is  not  seen.  He  has 
given  currency  to  certain  views,  and  even  sayings,  which  are 
not  altogether  well  founded.'  He  adheres  to  the  division  of 
the  three  powers,  which  Aristotle  had  adopted.  Hume's  in- 
fluence upon  politics  was  not  unimportant.  The  Physiocrats, 
in  France,  founded  by  Quesnay,  physician  to  Louis  XV.,  and 
among  whom  we  must  count  so  many  distinguished  French- 
men, especially  Turgot  and  Malherbes,  the  well-meaning  and 
pure-hearted  first  ministers  of  Louis  XVI.,  acquired  no  in- 
considerable importance  in  politics,  as  they  were  led  by  their 

'  Certain  commonplaces  fasten  for  a  lime  upon  mankind,  sometimes  because 
true,  sometimes  because  half-true,  at  others  because  they  have  a  captivating 
sound,  are  tersely  expressed,  and  borrow  the  graces  of  alliteration  or  pungency 
of  antithesis,  and  yet  are  not  true  after  all.  Montesquieu  has  said,  "  no  monarch, 
no  nobility;  no  nobility,  no  monarch."  Yet  there  was  nobility,  and  a  very 
noble  nobility,  in  Venice,  without  a  monarch  ;  there  was  nobility  in  the  repub- 
lican Netherlands;  while,  on  the  other  hand,  Norway  has  a  monarchy  without 
nobility. 


3o8 


THE  STATE. 


political  economy  to  insist  upon  the  abolition  of  the  exemp- 
tion of  some  classes  from  taxation,  on  free  trade,  and  on  abo- 
lition of  bondage  and  of  feudal  relations.  Mably,  already 
mentioned,  wrote  a  Droit  public  de  I'Europe,  Observations 
sur  I'Histoire  de  France,  and  several  other  works,  which  gave 
him  considerable  reputation.  Adam  Smith,  Blackstone,  De- 
lolme,  Hallam,  Bentham,  have  all  contributed  to  awaken  or 
settle  important  political  ideas.  Filangieri,  an  Italian,  wrote 
a  Science  of  Legislation.  He  says,  monarchs  and  people 
are  natural  enemies,  and  nobility  is  essential  to  reconcile 
both.  Much  respecting  public  law  is  to  be  learned  from  the 
works  of  Paul  Sarpi,  especially  his  account  of  the  differences 
between  Pope  Paul  V.  and  the  republic  of  Venice.  (Storia 
particolare  delle  cose  passate  tra  il  sommo  Pontefice  Paolo 
V  e  la  Serenis.  Rep.  di  Venezia,  negli  anni  1605-7.)  ^^ 
allowed  to  venture  the  opinion,  I  would  say  that,  if  Italy  ever 
be  regenerated,  it  would  seem  that  Sarpi's  and  Vico's  works 
will  be  found  to  have  contributed  much  to  so  great,  so  noble, 
and  so  desirable  an  end. 

In  America,  no  work  treating  solely  and  systematically 
either  of  natural  law  or  the  existing  public  law  has  as  yet 
appeared ;  but  I  would  mention  as  works  treating  of  subjects 
belonging  to  these  departments,  or  intimately  connected  with 
them.  The  Federalist,  the  writings  of  Ames,  Hamilton,  and 
Jefferson,  Tucker's  Blackstone,  Kent's  Commentaries,  Story's 
Commentaries  on  the  Constitution  of  the  United  States,  and 
Wheaton  on  International  Law.  (See  Political  and  Legal 
Hermeneutics.)  The  Journal  of  Congress  before  the  adoption 
of  the  constitution  of  the  United  States,  and  the  Debates  in  the 
several  state  conventions  on  the  adoption  of  the  Federal  Con- 
stitution, 4  vols.,  published  by  congress,  1836,  are  works  of 
much  importance.  The  work  of  President  Madison,  on  the 
debates  of  the  first  congress,  now  publishing  by  congress,  will, 
of  course,  contain  many  points  of  high  interest  relating  to  our 
subject. 

The  great  epochs  which  have  had  the  most  decided  influ- 
ence on  public  law  are  the  struggle  of  the  Netherlands  against 


PROGRESS   OF  PUBLIC  LA  IV.  309 

the  crown  of  Spain,  the  two  English  revolutions  (many  im- 
portant principles  of  the  second  of  which  were  never  more 
clearly  exhibited  than  when  the  prince  of  Wales,  afterwards 
George  IV.,  insisted  upon  having  the  regency,  at  the  first 
alienation  of  mind  of  his  father ;  on  which  occasion,  what  is 
not  a  little  interesting,  the  more  liberal  principles  were  main- 
tained by  the  tories,  because  they  had  to  show  that  parliament 
represented  the  people  and  had  a  voice  in  the  settlement  of 
the  regency) ;  the  American  revolution  or  war  of  independ- 
ence, the  first  French  revolution,  and  the  epoch  of  that  theory 
of  legitimacy  which  was  peculiar  to  the  writers  under  Napo- 
leon. During  the  time  of  the  restoration  of  the  elder  Bour- 
bons, men  like  De  Bonald  and  De  Maistre  brought  forth 
their  strange  mixtures  of  mysticism,  Catholicism,  and  abso- 
lutism. The  rights  of  the  people  are  favors  of  the  monarchs, 
says  Count  de  Maistre.  Since  the  French  revolution  of  1830, 
the  theory  upon  which  the  government  is  acknowledged  to 
be  built  has  materially  changed  in  that  country.  French 
literature  has  teemed  with  political  works,  but  I  am  not  able 
to  give  a  survey  of  them  so  shortly  after  their  appearance. 
Of  the  later  or  recent  Germans  I  will  mention  only  Wolf, 
Kant,  Fichte,  Hegel,  Politz,  Raumer.^ 

'  A  o-eneral  view  of  the  progress  of  public  law  is  given  with  i=pirit  in  L.  Hoff- 
man's Inquiries  into  the  most  important  Affairs  of  Man  as  Citizen  and  Cos- 
mopolite (German),  Deuxponts,  1830,  2  vols.— a  work,  however,  from  which 
I  differ  in  more  than  one  point. 


CHAPTER    X. 

Various  Standards  of  great  Political  Periods. — The  Government  must  depend 
upon  given  Circumstances  and  Materials. — Which  is  the  best  Government  ? — 
Errors  as  to  an  Ideal  Government. — Governments  cannot  be  made  in  the  Closet, 
or  decreed. — Characteristics  of  a  good  Government. — Civil  Liberty. — What  it 
is.— Errors  respecting  it. — Majority  and  Minority. — The  Majority  are  not  the 
People. — The  Athenians  checked  their  own  Power. — Great  and  true  Value 
of  Representative  Government.— Whoever  has  the  Power,  One,  Many,  or  the 
Majority,  may  abuse  it,  and  must  be  checked. 

C.  Since  government  is  that  institution,  or  organism,  by 
which  the  state  endeavors  to  obtain  and  secure  the  objects  of 
the  state,  the  excellence  of  government  naturally  depends  upon 
what  these  objects  are,  and  upon  the  people  for  whom  it  exists 
and  through  whom  it  operates.  People,  in  this  sense,  does  not 
only  mean  the  respective  individuals,  separate  and  for  them- 
selves, but  in  the  various  relations  in  which,  according  to 
place  and  time,  they  must  move.  Generally  speaking,  the  ob- 
ject of  the  state  is  the  aiding  society  in  obtaining  the  highest 
degree  of  civilization,  or  the  greatest  possible  development  of 
man,  both  by  removing  obstacles,  or  assisting  directly,  in  all 
cases  in  which  the  member  of  society  ought  not,  cannot,  or 
will  not  act  individually  and  upon  his  own  responsibility.  But 
Rome  was  not  built  in  one  day  ;  civilization  resembles  neither 
a  mushroom  nor  a  hot-house  plant,  but  it  is  like  a  garden, 
to  be  cultivated  with  wisdom,  that  is,  patiently,  perseveringly, 
and  judiciously,  keeping  steadily  in  view  the  main  object  for 
which  the  garden  may  have  been  laid  out,  with  constant  refer- 
ence to  what  plants  may  best  answer  our  ends,  considering 
the  given  soil  and  climate.  Mankind  was  not  developed  in 
one  day,  nor  is  there  one  absolute  prize  in  the  lists  of  his- 
tory to  be  run  for;  the  moral  growth  of  mankind  is  gradual, 
constant,  and  various,  each  time  and  each  place  affording  new 
conditions  and  giving  new  problems. 
310 


STANDARD    OF  GREAT  PERIODS. 


311 


Each  great  period  in  history,  that  is,  each  period  in  which 
the  activity  of  man  is  directed  with  peculiar  intensity  to- 
wards the  obtaining  of  some  great  end,  the  realization  of  some 
great  idea,  carries  within  it  its  own  standard.  We  become, 
therefore,  in  the  same  degree  unjust,  and  obtain  a  narrow  and 
distorted  view  of  truth,  as  we  apply  the  standard  of  one  con- 
spicuous period,  a  period  which  opens  the  gates  of  a  new  era, 
to  another.  The  legislation  of  Moses,  whose  object  was  to 
lead  bondsmen  into  liberty,  cannot  be  correctly  understood  in 
judging  it  by  the  standard  of  the  Spartan  constitution.  The 
laws  digested  and  amended  by  Lycurgus  eight  hundred 
years  before  Christ,  and  for  a  small  state,  do  not  give  us  the 
test  to  try  the  excellence  or  badness  of  the  reign  of  Charle- 
magne, eight  hundred  years  after  Christ,  over  a  variety  of 
discordant  and  unruly  tribes,  whose  first  essential  want  was 
pacification,  England  under  Elizabeth,  with  a  bull  of  Pius 
V.  hanging  over  her,  and  preceded  by  monarchs  so  violent  as 
Henry  VIII.  and  Mary,  had  to  strive  for  different  objects  than 
under  the  administration  of  an  Earl  Grey. 

CI.  Does  this  consideration  lead  to  mere  expediency,  and 
is  there  no  stable  principle  to  be  ascertained  in  politics  ?  By 
no  means.  The  whole  preceding  part  of  this  work  must  show 
the  contrary.  We  can  and  must  ascertain  those  principles 
which,  from  the  nature  of  men  and  by  ample  experience, 
show  themselves  to  be  essential  to  the  obtaining  of  the  high- 
est ends ;  for  instance,  security  of  life,  limb,  and  property. 
Yet  these,  and  especially  the  last,  are  at  times  sacrificed  to 
higher  objects,  and  always  subjected  to  the  most  various 
modifications.  We  must  inquire,  therefore,  whether  that 
great  object  which  is  exhibited  as  forming  the  problem  of 
the  period  is  a  good  one  or  not ;  after  that,  it  is  for  wisdom 
to  judge  how  it  is  best  to  be  obtained  by  the  given  means; 
for  others  than  the  given  ones  are  not  at  our  disposal. 
"  Neither  are  laws,"  says  Selden,  "  thus  to  be  compared" 
(meaning  by  an  absolute  standard).  "  Those  which  best  fit 
the  state  wherein  they  are,  clearly  deserve  the  name  of  the 


312 


THE  STATE. 


best  laws."     (Note  to  Fortescue,  De  Laud.  Leg.  Angl.,  chap. 

xviii.,  note  g,  edit,  of  1741.)    This  is  very  different  from  Pope's 

verses, — 

"  For  forms  of  government  let  fools  contest; 
That  which  is  best  administered  is  best," — 

a  saying  which,  on  account  of  its  boldness  and  convenience, 
both  for  the  ignorant  and  indolent  as  well  as  for  those  who 
find  high-handed  measures  more  suitable  to  their  interest  than 
the  restraints  of  the  law,  has  proved  as  popular  as  it  is  radi- 
cally wrong.  For  a  bad  law  cannot  be  administered  well :  no 
Alfred  could  administer  well  the  former  Irish  Brehon  or  the 
ancient  French  law,  according  to  which  the  third  estate  was 
made  and  existed  only  to  support  the  two  others,  which 
nevertheless  held  nearly  all  the  land.'  In  fact,  this  fallacious 
dictum  seeks  all  good  government  in  the  personality  of  the 
governors,  and  is  nothing  less  than  the  Asiatic  principle ; 
while  the  very  object  of  good  fundamental  laws  and  institu- 
tions is  to  force,  as  far  as  possible,  the  various  personal  pecu- 
liarities which  are  purely  adventitious,  that  is,  uncontrollable 
by  us  as  to  their  origin,  into  co-operation  in  obtaining  what 
has  been  recognized  as  an  essential  end  and  object. 

CII.  The  objects  of  the  state  may  be  divided  into  two 
classes :  stable  ones  and  those  which  change.  The  stable 
objects  are  those  which  must  ever  be  considered  as  the  indis- 
pensable requisites  of  all  civilization  and  all  the  higher  ends, 
that  is,  as  has  been  mentioned  several  times,  safety  of  person 
and  property,  uninterrupted  administration  of  justice.  No 
monarch  has  yet  existed,  over  however  uncivilized  a  horde 
he  may  have  ruled,  who  has  not  considered  it  a  high  claim 
to  the  gratitude  of  his  people  that  he  has  dealt  out  even- 
handed  justice,  if  he  could  claim  it  at  all.  If  we  see  such  a 
state  of  things  as  that  which  is  designated,  by  what  ought  to 


^  At  the  diet  of  Tours,  in  1433,  the  clergy  and  nobility  insisted  that  the  third 
estate  should  pay  the  expenses  of  all  three  estates,  incurred  by  travelling  to  and 
living  at  the  diet,  because  made  to  support  the  two  other  estates.  [?] 


BEST  GOVERNMENT.  313 

be  called  historical  irony,  as  the  jus  manuariinn,  but  which 
more  broadly  and  correctly  bears  in  German  the  name  of  fist- 
law  (Faustrecht),  we  must  absolutely  pronounce  it  a  bad  gov- 
ernment, if  government  we  can  call  it  at  all ;  because  it  fails 
to  secure  one  of  the  unchangeable  objects  of  all  government, 
just  as  that  architecture  which  effects  the  building  of  no 
shelter  at  all  would  be  a  bad  one,  whatever  the  materials  or 
peculiar  object  in  view  might  be.  The  changing  objects  of 
the  state  vary  according  to  the  peculiar  genius  or  wants  of 
the  people  or  society,  the  soil,  the  degree  of  civilization,  the 
condition  of  their  neighbors,  and  whatever  else  may  power- 
fully influence  the  state  of  a  certain  society.  Government, 
therefore,  which  has  to  obtain  these  ends  with  these  materials, 
must  vary  accordingly.  If  the  materials,  I  repeat,  are  Jews, 
strongly  affected  by  the  views  of  the  Egyptians,  and  in  a  state 
of  barbarity,  and  the  object  is  to  lead  them  through  a  desert, 
or  to  conquer  a  country  where  they  may  become  agricul- 
turists, or  to  preserve  monotheism  amidst  surrounding  poly- 
theism, the  contrivance,  called  government,  to  obtain  these 
objects,  must  be  very  different  from  what  it  has  to  be  with  a 
society  or  state,  whose  chief  object  is  to  ward  off  the  inroad 
of  a  conquering  and  devastating  tribe,  on  a  small  island,  as 
that  of  the  knights  of  St.  John  on  the  island  of  Rhodes  was, 
or  with  a  society  possessing,  by  way  of  inheritance,  the  insti- 
tutions of  England,  and  one  of  whose  objects  is  to  people, 
cultivate,  and  spread  civilization  over  an  extensive  part  of  a 
vast  and  fertile  continent,. as  is  the  case  with  the  people  of  the 
United  States.  If  the  object  is  to  reform  and  reorganize  the 
debased  and  nerveless  population  of  a  large  country  in  a  burn- 
ing climate,  as  that  of  Egypt  at  present,  the  government  must 
essentially  differ  from  that  of  an  industrious  people  who,  how- 
ever, must  unitedly  struggle  against  the  inroads  of  the  sea  if 
they  mean  to  do  it  effectually,  such  as  the  Dutch.  If,  in  the 
course  of  progressive  civilization,  one  of  the  most  inspiring 
and  impelling  elements  of  society  is  the  beautiful,  as  was  the 
case  with  Greece,  the  government  must  differ  from  that  of  a 
people  who  must  defend  themselves  daily  against  the  attacks 


314  THE  STATE. 

of  the  Arabians  or  Moors,  as  the  Spaniards  were  obliged 
to  do,  or  of  a  people  who  live  where,  with  all  possible  indi- 
vidual exertion,  it  is  difficult  to  maintain  life,  as  is  the  case  in 
Iceland. 

If  one  of  the  fundamental  objects  of  all  government  is  t^cy 
deal  out  even-handed  justice,  the  organization  of  the  judiciary 
department  must  be  very  different  among  a  people  where  wit- 
nesses can  be  habitually  bought,  or  where  part  of  the  popula- 
tion live  in  a  semi-savage  state,  as  is  the  case  with  the  lazza 
roni  in  Naples,'  from  what  it  may  be  or  ought  to  be  among 
a  people  who  descend  from  a  nation  that  have  been  ac- 
customed for  centuries  to  a  high  respect  of  justice  and  the 
"  majesty  of  the  law,"  as  is  the  case  with  the  Americans, 
descending,  as  they  doj  from  the  English.  ,The  government 
of  a  narrow  and  extended  country  must  differ  from  that  of  a 
compact  and  well-rounded  one ;  that  of  a  people  who  gener- 
ally feel  deeply  interested  in  education  and  industry,  from  that 
which  has  to  be  roused  from  the  inertness  and  indifference  of 
semi-barbarism,  as  the  Russians  under  Peter  the  Great;  that 
of  a  country  in  which  different  races  live,  differing  in  color, 
disposition,  and  degree  of  civilization,  cannot  be  the  same 
with  that  of  another  peopled  by  one  race,  the  individuals  of 
which  stand  comparatively  on  a  level  of  civilization,  desires, 
habits,  and  wants.  One  of  the  most  important  of  the  given 
circumstances  which  determine  the  choice  of  means  in  gov- 
erning must  always  consist  of  the  means  of  government  and 
laws  made  use  of  by  the  preceding  generations. 

cm.  All  discussions,  therefore,  on  the  excellence  of  gov- 
ernments merely  on  abstract  principles  and  without  reference 


'  The  French,  having  conquered,  among  other  countries,  the  south  of  Italy, 
introduced  the  trial  by  juiy,  but  they  soon  were  obliged  to  abolish  it  again,  on 
account  of  the  venality  of  the  people,  as  well  as  their  general  unfitness.  One  of 
the  wise  measures  of  the  government  of  Joseph  Bonaparte  in  Naples  was  the 
attempt  at  domesticating  the  lazzaroni.  They  were  employed  in  various  ways, 
and  the  wages  were  partly  paid  in  mattresses  or  other  house-utensils,  in  order, 
before  all,  to  accustom  them  to  a  civilized  domestic  life,  and  to  break  them  of 
the  habit  of  sleeping  in  the  open  air,  in  gateways,  etc. 


BEST  GOVERNMENT. 


315 


to  the  given  circumstances,  are  futile.  The  science  of  govern- 
ment is  no  more  an  abstract  one  than  architecture.  The 
architect,  without  knowledge  of  pure  mechanics  and  mathe- 
matics in  general,  will  make  but  a  poor  bungler,  yet  it  is  of 
primary  importance  to  him,  before  he  can  either  draw  the 
plan  of  a  building  or  take  any  specific  measure,  to  know  what 
materials  he  has  at  his  disposal,  whether  wood,  bricks,  or 
marble,  the  climate  which  will  operate  on  them,  the  ground 
on  which  he  has  to  build,  and  the  object  for  which  the  build- 
ing is  intended.  So  has  the  statesman  to  acquaint  himself 
thoroughly  with  ethics,  natural  law,  and  philosophy  in  gen- 
eral, yet  he  must  not  forget  his  materials  when  he  comes  to 
the  practical  question,  nor  the  object  of  his  society. 

The  political  writers  who  have  tried  to  settle  the  question 
of  government  without  reference  to  the  material,  the  age,  and 
the  wants  of  the  people,  have  fallen  into  great  errors.  Some 
have  defended  monarchy  as  the  ideal  of  government ;  others 
have  thought  the  principle  that  every  male  adult,  without  ex- 
ception, shall  have  an  equal  right  to  vote,  the  only  just  and 
philosophical  ground  on  which  a  true  government  can  be 
founded.  On  its  own  ground  alone,  however,  in  the  abstract 
I  mean,  the  principle  of  universal  suffrage,  by  which  men  are 
valued  solely  by  their  number,  is  no  more  philosophical  than 
valuing  them  according  to  any  other  principle,  that  of  prop- 
erty, size,  or  weight.  It  might  be  maintained  that  the  large 
man  consumes  more  than  the  small,  consequently  he  con- 
tributes more  to  the  expense  of  government,  therefore  he  is 
entitled  to  a  larger  share  in  government.  There  are  condi- 
tions of  society  in  which  property  forms  a  sound  basis  of 
representation,  and  the  soundest  that  they  allow  of;  but  is 
this  so  on  its  own  abstract  ground  ?  Does  not  the  labor  of 
an  industrious  man,  or  his  readiness  to  defend  the  state  by 
exposing  his  life,  give  an  equally  well-founded  title  to  the 
right  of  being  represented,  and  an  active  share  in  this  repre- 
sentation? Whoever  has  adopted  one  principle  in  the  ab- 
stract as  the  only  admissible  basis  of  government  has  been 
forced  into  the  strangest  incongruities. 


3l6  THE  STATE. 

CIV.  That  there  are  immutable  poh'tical  principles  in  gov- 
ernments, according  to  which  we  can  at  once  pronounce 
some  to  be  bad,  or,  at  the  utmost,  to  be  called  for  only  by- 
way of  rapid  transition,  is  evident.  That,  on  the  other  hand, 
there  are  certain  important  principles  of  good  government 
which  will  steadily  show  themselves  clearer  with  the  advance 
of  civilization,  is  equally  evident;  and,  finally,  that  experience 
and  mature  reflection  upon  it  entitle  us  to  declare  certain 
forms  and  features  as  vastly  eligible  for  a  certain  period  and 
a  certain  degree  of  national  development,  I  hold  to  be  equally 
true.  Such,  for  instance,  I  consider  to  be,  for  the  civilized 
nations  of  our  times,  the  exalted  principle  of  representative 
government,  or  that  of  two  chambers.  If  experience  shows 
us  that  the  adoption  of  certain  principles  always  leads  the 
people  towards  certain  desirable  ends,  if  they  have  once  ar- 
rived at  a  certain  point  of  political  civilization,  we  are  justly 
entitled  to  declare  it  with  regard  to  a  people  in  such  a  state 
of  civilization,  and  inhabiting  such  or  such  an  extent  of 
country,  a  salutary  one.  But  who  would  like  to  be  tried  by 
a  jury  of  Bushmen,  or  insist  upon  the  introduction  of  popular 
representation  with  two  chambers  in  Turkestan,  or  annual 
meetings  of  parliament  in  China? 

Nor  do  I  maintain  that  it  is  impossible  to  settle  certain 
general  principles  in  politics.  One  of  these,  for  instance,  is,  I 
take  it  to  be,  that  any  class  of  men  who  have  the  power  to 
make  themselves  politically  felt  and  are  conscious  of  it,  have 
thereby  a  right  to  influence  government  proportionally.  I 
do  not  say  that  those  who  have  not  the  power  shall  on  no 
condition  be  entitled  to  this  right.  This  would  be  a  wrong 
and  very  dangerous  conclusion.  The  cities  had  a  right  to 
rise  into  political  influence  in  the  middle  ages  ;  the  peasants 
had  a  right  to  demand  liberty  with  its  consequences.  It  is 
the  very  province  of  the  science  of  politics  proper  to  discuss 
and  trace  out  these  principles ;  and  I  shall  find  occasion  to 
touch  upon  a  few  in  the  sequel  of  this  volume,  as  I  have 
done  already  in  the  previous  part,  when  speaking  of  power. 

Governments  are  not  made  in  the  closet;  you  may  pro- 


GOOD    GO  VERNMENTS. 


317 


claim  a  republic,  you  may  write  a  constitution  on  parchment, 
but  does  it  work  ?  is  it  a  living  thing  ?  Was  France  ever  a 
republic,  in  despite  of  her  many  constitutions  proclaiming  her 
to  be  such  ?  She  remained  a  concentrated  government,  and 
is  now  only  gradually  changing  her  character.  Lord  Erskine 
says  of  the  first  English  revolution,  "  Monarchy  was  only  sus- 
pended, not  abolished."  Of  the  French  it  might  be  said  that 
absolute  monarchy  changed  the  name ;  and  of  the  United 
States  we  may  well  say,  republicanism  was  only  veiled  as 
long  as  they  were  colonies.  I  do  not  indeed  mean  to  say  that 
no  government  can  change,  but  it  cannot  leap  over  into  some- 
thing else,  nor  ever  become  anything  but  what  is  conditioned 
by  the  existing  materials, 

CV.  Which  is  the  best  government  ?  That  government 
which  fulfils  best  its  purpose,  by  which,  however,  is  not  meant 
a  momentarily  so-called  flourishing  state  only.  For  such  a 
state  of  things  may,  at  times,  poison  the  very  life-blood  of  a 
state,  and  undermine  instead  of  leading  to  a  higher  degree  of 
liberty,  the  main  object  of  all  governments,  because  greater 
liberty  is  but  greater  protection — protection  of  free  individual 
action. 

To  speak  of  civilized  nations,  that  government  ought  to  be 
called  good  which  amply  protects  and  in  which  every  man 
can  obtain  justice;  which  for  its  existence  does  not  require  a 
class  by  whose  privileges  others  are  injured,  be  this  a  wrongly 
privileged  aristocracy,  or  democracy,  or  party.  That  govern- 
ment is  the  best  under  which  we  find  the  greatest  number  of 
laws  and  institutions,  essential  to  the  state,  founded,  devel- 
oped, or  secured,  with  which  the  nation  works  heart  and  hand 
for  just  and  great  ends;'  which  forms  one  living  organism 
with  the  people,  and  with  which  in  times  of  danger  they 
join  with  true  devotion,  considering  their  sacrifices  to  it  as 


»  Popularity  is  far  from  constituting  the  sole  index  of  good  government,  not 
even  the  universal  readiness  of  the  people  to  share  the  dangers  of  war.  The 
wars  of  the  Mongols  were  essentially  national  and  not  cabinet  wars ;  but  was  the 
Mongol  government  a  good  one  ? 


3i8  THE  STATE. 

sacrifices  to  the  common  weal  only ;  that  government  which 
has  in  itself  the  peculiar  expansiveness  as  well  as  the  organi- 
zation which  not  only  allows,  but  necessarily  leads  to,  farther 
and  farther  political  development,  and  goes  on  raising  the 
individual  as  a  political  being.  When  we  see  the  flourishing 
state  of  a  nation  essentially  connected  with  institutions,  and 
when  we  find  the  fundamental  institutions  with  an  expansive 
character,  not  of  a  cramping  obsoleteness,  then  we  may  have 
a  right  to  suppose  that  the  government  is  good.'  Seek  not 
protection  or  liberty  in  mere  forms.  No  political  form  that  can 
be  imagined  has  not  at  times  been  oppressive  and  ruinous. 
Life,  true  and  high  action,  is  the  thing  we  must  look  for ; 
mere  form  kills. 

CVI.  That  government  is  the  best  which  secures  most 
effectually  all  the  stable  objects  of  the  state,  and  aids  most 
wisely  in  obtaining  all  the  others ;  which  procures  in  the 
calmest  and  yet  most  efficient  way  all  things  that  must  be 
obtained  for  society,  and  does  not  oblige  the  people  fre- 
quently to  resort  to  sudden  and  violent  actions  in  order  to 
obtain  what  needs  must  be  obtained  by  united  action,  and 
which  government,  nevertheless,  fails  to  procure ;  that  gov- 
ernment which  interferes  least  with  my  individuality  and  yet 
affords  to  society  the  best  opportunity  for  the  highest  indus- 
trial and  mental  action ;  in  fine,  that  government  which  con- 


'  There  are  certain  meteoric  periods  in  the  history  of  some  nations,  which  pass 
quickly,  and  leave  no  life,  as  the  kindling  ray  of  the  sun  does,  though  he  may 
vanish  for  a  time  from  the  heavens.  There  are  few  more  glorious  epochs  in  the 
annals  of  any  people  than  that  of  the  Portuguese  which  begins  with  the  striving, 
gifted,  enlightened,  and  enlightening  prince  Heniy  the  Navigator,  and  winds  up 
with  Louis  Camoens,  that  noble  martyr  of  genius,  and  includes  the  invention  of 
the  sextant,  vast  discoveries,  heroic  deeds,  enlargement  of  knowledge,  and  the 
names  of  Diaz,  Gama,  Cabral,  Andrada,  and  Albuquerque.  Yet  the  period  was 
not  only,  historically  speaking,  brief,  but  dark  night  succeeded,  and  the  Portu- 
guese nation  has  ever  since  presented  a  painful  instance  of  a  misruled  people. 
They  had  no  sound  institutions.  Neither  national  riches,  nor  glorious  names, 
nor  heroic  deeds,  nor  brilliant  literature,  nor  absence  of  commotion  alone,  are 
capable  of  saving  a  nation,  or  furnish  us,  of  themselves  and  without  reference  to 
something  else,  with  a  safe  exponent  of  good  government. 


BAD   GOVERNMENTS. 


319 


tinually  remembers  that  every  individual  has  an  undeniable 
right  to  the  greatest  possible  individual  activity,  and,  there- 
fore, protects  against  all  interference  with  him,  and  secures  to 
him  all  that  which  is  necessary  to  him  as  a  social  being. 
Wherever  we  see  great  personal  security  and  high  social 
action,  wherever  individual  and  social  rights  and  claims  are 
best  secured  and  promoted,  there  is  the  best  government. 
Where  personal  and  social  activity  is  paralyzed,  where  the 
mental  life  of  society  is  deadened,  where  the  individual  re- 
ceives no  equivalent  for  his  sacrifices,  where  one  part  of  so- 
ciety is  sacrificed  to  another,  that  is,  where  no  equivalent  is 
received ;  where  a  few  control  and  arrogate  government  to 
themselves,  like  the  property  which  belongs  to  them  ;  where, 
above  all,  the  stable  objects  of  all  governments  are  but  par- 
tially secured,  or,  if  entirely,  only  for  a  few,  and  where  no 
industrial,  moral,  and  mental  expansion  of  society  exists ; 
but,  on  the  contrary,  where  measures  of  government  have  a 
benumbing  effect,  where  protection  depends  chiefly  upon 
the  personality  of  those  in  authority,  and  not  upon  well- 
grounded  institutions  and  laws,  which  are  conceived  not  with 
regard  to  their  operation  and  salutary  effect  but  on  account 
of  extraneous  and  unessential  considerations  ;  where  we  see 
numerous  laws  issued,  but  without  action  and  soon  forgotten, 
nominal  institutions  without  roots  in  the  history  of  the  nation, 
— there  is  a  bad  government. 

CVII.  Here  we  have  to  guard  ourselves  against  two  errors. 
The  high  intellectual  or  social  activity  of  a  part  of  society 
may  be,  and  often  has  been,  obtained  by  a  sacrifice  of  the 
most  essential  interests  of  by  far  the  greater  majority  of  the 
people.  I  speak  of  those  brilliant  governments  which  blind  the 
superficial  observer,  such  as  that  of  Louis  XIV.  They  have 
an  equally  dangerous  effect  upon  the  hasty  observer  of  after- 
times,  who  seizes  only  on  what  is  striking  and  does  not  suspect 
the  sacrifices  which  were  necessary  to  produce  it.  A  palace 
of  a  Louis  XIV.  is  remembered  long  after  the  squalid  popula- 
tion which  had  to  pay  taxes  towards  it  has  been  forgotten. 


320 


THE  STATE. 


CVIII.  Yet  we  must  be  careful  not  to  take  the  physical 
well-being,  either  by  way  of  physical  comfort  or  personal  and 
physical  security — two  most  important  objects  of  government, 
indeed,  because  they  are  the  foundation  for  higher  objects — 
as  its  sole  end  or  only  index  of  excellence.  It  was  a  true 
Saying  of  Plato's,  "  Not  to  live,  but  to  live  nobly  is  the  object." 
Personal  security  against  bodily  harm,  for  instance,  may 
be  obtained  together  with  personal  liberty,  and  forms  part 
of  it,  in  which  case  it  is  excellent;  or  it  may  be  obtained 
at  the  price  of  personal  liberty.  An  extensive  preventive 
police  may,  by  fettering  all  free  individual  action,  prevent 
many  offences  indeed,  but  mere  physical  security  is  not  the 
object  of  government.  Society  stands  in  need  of  it,  because 
without  it  society  cannot  obtain  its  highest  object — civiliza- 
tion, which  includes  free,  individual  activity.  There  is  peace 
indeed  in  a  prison.  If  you  put  a  man  in  irons  he  cannot 
do  harm,  it  is  true,  but  neither  can  he  do  good.  The  so- 
called  happiness  principle,  if  happiness  be  rightly  understood, 
is  correct,  but  a  most  mischievous  one  if  we  limit  it  to 
physical  well-being  only,  as,  certainly,  it  is  taken  by  many  of 
its  advocates.  Is  this  happiness  indeed  the  last  term  to  be 
striven  for  ?  If  so,  why  does  every  one  feel  in  the  course  of 
his  life  called  upon  to  give  it  up  to  higher  objects  ?  Is  this 
happiness  always  the  means  through  which  we  reach  the 
highest  objects  of  man  ?  or  is  not  trouble,  sacrifice,  and  even 
woe,  that  means  in  many  cases  ?  Has  a  nation  not  to  sacri- 
fice happiness  to  liberty?  Is  it  merely  the  avoiding  of  higher 
taxes  which  shall  prompt  a  people  to  bold,  high,  national 
actions  ? 

CIX.  Had  not  this  erroneous  position  been  frequently 
taken,  it  would  not  so  often  have  been  asserted  that  the  best 
government  is  an  absolute  monarchy  with  a  truly  just  and 
wise  king.  This  is  a  most  radical  error.  An  absolute  gov- 
ernment, which  forces  to  act,  and  does  not  animate  and  fruc- 
tify the  principle  of  self-action,  undermines  the  state  by  its 
very  character,  and  exposes  to  the  greatest  danger,  both  by 


IV/SE  ABSOLUTE  MONARCHS.  321 

the  death  of  the  just  and  wise  ruler,  who  cannot  insure  the 
same  qualities  in  his  successor,  and  by  blinding  the  people, 
who,  content  with  their  physical  welfare  and  perhaps  the  bril- 
liant energy  of  the  government,  are  ready  to  abandon  all  law 
and  all  institutions,  placing  implicit  confidence  in  their  rulers, 
until  recovery  is  too  late.  "  Where  the  security  is  no  more 
than  personal,  there  may  be  a  good  monarch,  but  can  be  no 
good  commonwealth."     (Harrington's  Political  Aphorisms.) 

ex.  So  unfounded  is  the  error,  that  the  very  opposite  may 
be  supported  with  far  greater  truth ;  for  history  shows  that  it 
is  the  wise  government,  tending  towards  absolutism,  which  is 
most  dangerous  to  the  people,  not  the  galling,  openly  or 
cruelly  tyrannical  one.  This  rouses,  the  other  lulls  to  sleep. 
That  a  high-handed  absolutism  may  be  the  best  government 
for  the  society  at  large,  as  a  stage  of  transition  only,  under 
peculiar  circumstances,  cannot  be  denied.  When  the  ruler  is 
far  in  advance  of  a  barbarous  or  semi-barbarous  nation,  as 
was  the  case  with  Peter  the  Great,  when  discordant  and 
heterogeneous  elements  have  to  be  united  and  forced  into  a 
uniform  action,  as  was  the  case  after  the  migration  of  nations, 
when  a  society  infested  with  swarming  banditti,  in  open  war 
with  all  authority,  has  to  be  rescued,  as  central  Italy  under 
Pope  Gregory  XIII.,  when  civil  war  has  torn  the  country  and 
a  restless  party  foments  conspiracies,  as  under  Cromwell, 
bold,  high-handed  measures  are  often  indispensable  and  the 
only  salutary  ones ;  but  they  form  the  exceptions,  and  cannot 
lead  to  the  rule,  just  mentioned,  that  the  best  government 
would  be  absolutism  in  the  hands  of  a  good  ruler.  If  a  ruler, 
even  in  cases  like  the  above,  neglects  to  awaken  the  principle 
of  civil  life,  if,  while  with  a  high  hand  he  pursues  the  general 
welfare,  he  disregards  private  rights,  he  still  omits  as  much 
as  he  performs.  For,  instead  of  inspiring  society  with  tlie 
breath  of  life,  he  deprives  it  of  it,  and,  consequently,  renders 
future  generations  unable  to  obtain  those  objects  for  which 
all  absolutism,  even  the  best,  can  be  but  a  temporary  means. 
If,  then,  we  find  it  asserted  that  that  government  is  the  best 

21 


322 


THE  STATE. 


which  best  provides  for  the  substantial  interests  of  the  people, 
we  shall  know  how  far  to  yield  assent.  Everything  depends 
upon  what  we  understand  by  substantial  interests.  If  they 
mean  what  has  been  shown  to  be  the  true  object  of  society,  it 
is  most  true,  for  all  forms  are  but  means  or  necessary  effects 
of  that  which  is  essential.  If  by  substantial  interest  nothing 
be  meant  but  personal  safety,  absence  of  danger,  and  plenty, 
even  at  the  price  of  individuality,  of  mental  free  action,  it  is 
not  true.  Rather  all  the  danger  of  error,  than  that  torpid 
state  where  there  is  neither  truth  nor  error,  but  mere  polit- 
ical stagnation. 

"  Generally  speaking,"  says  Schiller,  in  his  Lecture  on  the 
Legislation  of  Lycurgus  and  Solon,  "  we  may  lay  it  down  as 
a  rule^  in  judging  of  political  institutions,  that  they  are  good 
and  praiseworthy  only  in  as  far  as  they  further  the  develop- 
ment of  all  the  faculties  with  which  man  has  been  endowed, 
in  as  far  as  they  promote  the  progress  of  civilization,  or  at 
least  do  not  impede  it.  This  is  equally  true  of  religious  as 
of  political  laws;  both  are  objectionable  if  they  fetter  a  faculty 
of  the  human  mind,  if  they  impose  upon  it,  in  any  sphere,  a 
standing  still.  A  law,  for  instance,  by  which  a  nation  was 
bound  unalterably  to  retain  a  system  of  dogmatics  which 
appeared  to  it  at  a  certain  period  as  the  best,  would  be  a 
criminal  attempt  against  humanity,  and  no  intention,  how- 
ever plausible,  could  justify  this.  It  would  be  directly 
against  the  highest  good,  the  highest  object  of  society." 

CXI.  One  of  the  great  errors  into  which  philosophical 
politicians  have  frequently  fallen,  in  consequence  of  seeking 
for  a  government  absolutely  and  abstractedly  good,  is  the 
idea  that,  the  people  being  themselves  the  object  of  all  gov- 
ernment, as  well  as  the  real  source  of  power,  the  best  govern- 
ment will  be  there  where  the  people  have  absolute  power. 
Let  us  investigate  this  subject  with  the  attention  and  sincerity 
which  its  magnitude  requires. 

It  is  asserted  that  if  the  people  for  whom  alone  the  govern- 
ment exists  have  the  sole  power,  they  cl6arly  will  not  act  to 


CIVIL  LIBERTY,  323 

their  own  Injury.     This  is  erroneous.     First,  it  would  apply 
to  such  people  only  as  are  sufficiently  enlightened  to  know 
what  is  their  true  interest.     The  Caffres,  and,  indeed,  I  be- 
lieve all  savage  tribes,  have  essentially  what  are  called  popu- 
lar governments.     Yet  they  do  not  rise  out  of  their  state  of 
barbarity ;  no  one  would  consider  this  government  preferable 
to  one  which  might  be  less  popular  but  would  force  them  to 
keep  the  peace.    Secondly,  this  proposition  rests,  like  so  many 
others,  on  a  deception,  owing  to  the  personification  of  an  idea, 
which  means  an  aggregate,  not  an  abstract.     Who  are  the 
people  ?     Is  it  one  individual,  or  a  number  of  individuals, 
called,   for  convenience'  sake,  by  one  name,  or  because  we 
imagine  it  as  a  body  of  individuals  who  in  regard  to  many 
and  most  essential  points,  but  not  to  all,  are  impelled  by  a 
common  interest?     Are  the  people  an  aggregate  of  a  number 
of  individuals  with  one  mind,  one  will,  one  impulse,  or  do  the 
people  consist  of  a  majority  and  a  minority?     Giving   un- 
bounded power  to  the  people  means,  then,  nothing  less  than 
giving  unbounded  power  to  a  majority;  for,  as  a  matter  of 
course,  the  majority  must  possess  it,  if  the  people  have  it  at 
all.    We  are  repeatedly  told  that  the  people  can  do  what  they 
like ;  but  have  they  the  right  to  deprive  the  minority  of  their 
property,  as  they  have  done  on  various  occasions,  or  to  en- 
slave them,  to  kill  them,  as   the   majority  of  Corcyra  did, 
during  the   Peloponnesian  war  (Thucyd.,  iii.   70,  85),  or  the 
French  during  the  first  revolution  ;  for  though  the  executions 
during  the  reign  of  terror  first  took  place  after  sham  trials, 
towards  its  end  it  was  decided  that  being  suspected  should 
suffice  to  mark  the  victim,  which,  in  plain   English,  meant 
that  being  in  the  minority  is  a  capital  crime.     Have  the  ma- 
jority the  right  to  deprive  the  minority  of  speech  ?  in  short,  to 
deprive  them  of  any  essential  attribute  of  man,  or  to  deny 
them  any  of  the  main  rights  of  the  citizen  and  chief  objects 
of  the  state  ?     Have   they  the  right,  however   frequently  it 
may  have  been  done,  to  arrogate  to  themselves  the  name  of 
the  people,  and  to  treat  every  one  of  the  minority  as  if  not 
belonging  to  the  people  ? 


324  THE  STATE. 

CXII.  Our  definition  of  liberty  must  necessarily  depend 
upon  the  view  we  take  of  the  state  and  its  objects,  so  that  the 
ancients  sought  liberty  in  something  different  from  what  ap- 
pears to  constitute  the  essence  of  modern  liberty,  a  subject  to 
which  I  shall  revert  on  a  subsequent  page.  But  whatever 
liberty  may  be — and  it  certainly  consists  as  much  in  the  ab- 
sence of  restraint  and  interference  with  actions  which  indi- 
viduals may  practise,  as  in  protection,  that  is,  protection 
against  individual  violators  of  my  rights,  against  the  elements, 
if  they  defy  individual  exertion,  and  against  anything  which 
interferes  with  my  being  truly  that  which  I  ought  to  be,  as 
far  as  I  alone  cannot  remove  it — whatever  liberty  may  be,  it 
is  of  little  political  value  to  nations,  unless  something  definite, 
distinct  ideas  embodied  in  palpable  institutions,  or  funda- 
mental laws,  be  meant  by  it; — except  by  way  of  rousing  de- 
generate generations.  In  this  case  even  a  vague  notion  of 
liberty  may  be  of  much  service,  in  order  to  throw  the  first 
spark  into  torpid  hearts. 

As  long  as  liberty  remains  a  generality,  its  love  a  longing 
and  feeling  rather  than  a  definite  conception,  it  is  a  poetic 
principle,  capable  of  prompting  to  generous  actions,  but  of 
little  use  as  to  the  proper  conception  of  what  these  actions 
ought  to  be.  It  is  in  institutions  that  liberty  is  embodied  ; 
and  for  what  end  are  these  institutions  established  ?  To  pro- 
mote and  to  protect.  To  protect  whom  ?  Him  that  wants 
protection.  Who  wants  protection  ?  Most  of  all,  he  who 
does  not  agree  with  those  that  have  the  power.  One  of  the 
truest  signs  and  safest  exponents  of  substantial  liberty,  there- 
fore, is  the  unwavering  protection  which  the  individual,  op- 
posed to  power,  the  minority,  enjoys — in  a  word,  it  is  the 
absence  of  absolute  power. 

A  late  writer  strangely  asserted  that  liberty  exists  in  the 
degree  that  representation  and  constituency  agree — a  puerile 
assertion,  which  it  would  be  superfluous  to  mention,  had  not 
the  same  writer  issued,  of  late,  various  works  on  subjects  con- 
nected with  politics,  claiming,  probably,  the  same  attention  of 
the  public  for  them  which  his  previous  productions  of  an  en- 


CIVIL  LIBERTY.  325 

tirely  different  kind  have  enjoyed.  If  that  assertion  be  true, 
it  either  exists  not  at  all  where  there  is  no  representation, 
and  the  body  of  the  people  act  directly,  or  it  exists  always  in 
this  case.  But  though  an  overwhelming  majority  sentenced 
Socrates  for  blasphemy,  for  him  there  was  in  that  case  no 
liberty  at  Athens.  Suppose,  moreover,  the  will  of  the  con- 
stituents is  wicked,  tyrannical,  does  liberty  still  exist  because 
their  representatives  are  perfectly  willing  to  act  up  to  their 
desire  ?  A  strange  sort  of  liberty,  which  solely  depends  upon 
something  external  and  relative — the  agreement  of  two  par- 
ties; and  not  upon  something  essential  and  positive.  This 
untenable  view  is  another  misconception  arising  out  of  the 
primary  error  of  a  natural  state  of  man,  and  a  natural  liberty, 
in  which  man  is  believed  to  be  absolutely  without  any  re- 
straint, except  his  own  conscience  and  understanding,  which, 
however,  it  would  appear,  must  yet  be  very  weak.  Civil  lib- 
erty, therefore,  is  judged  by  a  negative  standard,  that  is,  it  is 
believed  the  less  you  are  required  to  give  up  of  that  original 
and  perfect  natural  liberty,  the  greater  the  amount  of  civil 
liberty.  The  idea  is  wrong,  radically  wrong.  Liberty,  like 
everything  else  of  a  political  character,  necessary  and  natural 
to  man  and  noble  to  be  striven  for,  arises  out  of  the  develop- 
ment of  society.  Man,  in  that  supposed  state  of  natural  lib- 
erty which  is  nothing  but  the  roving  state,  is,  on  the  contrary, 
in  a  state  of  great  submission :  he  is  the  slave  and  servant  of 
the  elements  ;  matter  masters  his  mind ;  he  is  exposed  to  the 
wrongs  of  every  enemy  from  without,  and  dependent  upon 
his  own  unregulated  mind.  This  is  not  liberty;  it  is  plain 
barbarism.  Liberty  is  materially  of  a  civic  character.  Doubt- 
less I  cannot  live  a  day  without  feeling  the  restraint  of  law, 
that  is,  the  effect  of  my  living  with  others.  Now,  inquire 
whether  this  restraint  is  the  giving  up  of  something  you  may 
be  supposed  to  have  once  possessed  entire,  or  whether  the 
whole  is  of  social  origin.  You  are  not  allowed  to  speak 
against  the  reputation  of  a  neighbor.  This  is  a  restraint;  had 
man  ever  the  liberty  to  speak  against  his  neighbor  what  he 
liked  ?     In  that  state  of  nature  he  had  no  neighbors.    He  was, 


326  THE  STATE. 

questionless,  allowed,  if  ever  he  lived  in  that  state,  to  mutter 
to  himself  what  he  chose ;  so  you  may  now  say  against  your 
neighbor  what  you  like,  provided  no  ear  but  your  own 
hear  it. 

Liberty,  I  would  say,  exists  in  the  degree  in  which  my 
action  and  activity  in  all  just  and  right  things  is  untrammelled, 
in  the  protection  of  my  individual  rights,  and  in  the  same 
degree  as  I  am  not  sacrificed  to  others. 

But,  it  may  be  objected,  can  the  majority  be  supposed  to 
desire  anything  wrong? 

CXIII.  Let  us  calmly  and  with  truthfulness  consider  his- 
tory and  the  nature  of  man,  and  we  shall  find  the  answer. 
We  all  acknowledge  that  man  is  a  frail  being,  subject  to  a 
thousand  sinister  influences;  we  all  acknowledge  that  wise 
men  are  infinitely  rarer  than  unwise ;  yet  shall  the  aggregate 
of  these  individuals  constitute  a  wise,  just,  dispassionate  body. 
Where  is  i-eason  in  this  argument?  Is  there  more  reason  in 
it  than  to  expect  wisdom  from  the  accident  of  birth,  in  heredi- 
tary monarchy?  The  people,  the  majority,  are  subject  to 
sudden  impulses,  to  passion,  fear,  panic,'  revenge,  love  of 
power,  pride,  error,  fanaticism,  as  individuals  are,  for  they  are 
individuals;  and  they  are  as  much  obliged  to  check  their 
united  power  as  that  of  small  bodies  and  individuals  must  be 
checked.  Socrates,  when  in  anger,  was  in  the  habit  of  count- 
ing quietly  a  large  number,  to  allow  time  to  his  excitement 
to  pass  over.  He  was  a  wise  man  indeed.  A  law  of  Al- 
phonso  II.  of  Spain  decrees  that  a  sentence  of  death  or  muti- 
lation shall  not  be  executed  until  after  twenty  days,  so  that, 
should  it  have  been  pronounced  in  wrath,  there  might  be 
time  for  reconsideration.     It  was  a  wise  law,  at  a  period  when 


'  When  the  Asiatic  cholera  raged  in  Hungary,  the  peasants,  the  vast  majority 
of  the  population,  killed  the  nobility  with  excruciating  torments,  because  the 
deluded  people  believed  that  the.wells  had  been  poisoned.  Something  similar 
took  place  in  Paris,  and  quite  lately  several  Englishmen  were  murdered  by  the 
populace  of  Rome,  because  suspected  of  wickedly  charming  some  inoffensive 
children. 


POPULAR  EXCITEMENT. 


Z'2-7 


the  necessary  guarantees  of  caution  in  the  trial  itself  had  not 
yet  been  discovered.  The  people  at  l^rge  stand  as  much  in 
need  of  retarding  processes  as  that  Grecian  sage  or  those 
Spanish  courts.  The  Athenians  distrusted  their  own  power, 
and  a  citizen  who  proposed  anything  against  the  established 
and  fundamental  law  was  punishable.  He  remained  so,  even 
if  his  proposition  had  been  adopted,  for  one  whole  year,  and 
the  T.apwjoijM-j  rpo-^i]  could  reach  him,  which,  therefore,  was 
considered  by  the  Athenians  as  the  great  protection  of  the 
state.  Whatever  we  may  think  of  the  means,  we  cannot  but 
agree  in  respecting  the  principle.^  In  that  same  immortal 
city,  to  which  mankind  owe  so  much  more  than  to  any  other, 
no  law  affecting  a  single  citizen  could  be  passed,  if  six  thou- 
sand votes  could  not  be  collected  in  favor  of  the  same.^  And 
we  must  never  forget  one  fact,  of  great  importance  respecting 
popular  excitement,  whether  it  consist  in  panic  or  anything 
else,  that  if  it  be  true,  on  the  one  hand,  that  large  numbers 
cannot  in  their  nature  be  so  easily  influenced,  in  many  cases, 
as  individuals,  it  is  likewise  true,  on  the  other  hand,  that  all 
men  are  apt  to  mistake  repetition  for  confirmation.  If  I  leave 
my  house,  and  twenty  persons  speak  to  me  successively  of 
the  same  fact  or  impression,  it  has  a  strong  tendency  to  make 
me  believe  what  they  say;  yet  all  these  twenty  persons  may 
have  derived  their  first  impression  directly  or  indirectly  from 
the  same  original  source,  which  may  or  may  not  have  been 
correct.  Hence  the  incalculable  power  of  rumors,  the  sur- 
prising beliefs  and  many  of  the  actions  of  great  masses,  at  all 
times  of  general  excitement,  which  the  historian  of  after- 
times  is  unable  to  trace  back  to  any  satisfactory  source,  or  of 
which  it  is  difficult  for  him  to  conceive  even  how  they  were 
possible.  The  beginning  of  the  first  French  revolution  fur- 
nishes several  striking  instances.  (See  the  Memoirs,  also 
Carlyle,  Thiers,  etc.)     Rumor  moves  on  like  an  avalanche. 


»  Demosth.  ag.  Timocrates,  748,  9;  .(Esch.  ag.  Ctesiphon,  367.  The  orators 
speak  continually  of  the  'i:a[}avbi<^v  jpadfi. 

'  Aiidocides  on  the  mysteries,  p.  42.  Comp.  Demosthenes  ag.  Aristoc.rates, 
p.  C49,  4,  p.  692,  25,  and  several  other  passages. 


328  THE  STATE. 

All  that  Virgil  said  of  the  ancient  Fama  holds  likewise  of  the 
modern : 

"  Mobilitate  viget,  viresque  adquirit  eundo  ; 
Parva  motu  primo;  mox  sese  attollit  in  auras 
Ingrediturque  solo  et  caput  inter  nubila  condit." 

But  to  this  must  be  added  that  in  our  times  she  flies  incom- 
parably swifter,  because  the  thousands  of  newspapers  are  her 
wings,  and  she  is,  in  many  cases,  infinitely  more  obstinate,  be- 
cause the  word  is  no  longer  evanescent  breath,  but  fastened 
and  fixed  by  types  and  print. 

CXIV.  Here,  then,  we  find  the  great  principle  of  a  repre- 
sentative government,  even  in  a  democratic  republic.  It  is 
not  because  the  people  are  too  numerous,  and  cannot  any 
longer  assemble  in  the  market,  as  in  the  ancient  republics, 
that  representative  governments  are  advisable,  or  have  be- 
come necessary,  merely  by  way  of  expediting  business,  but  it 
is  on  the  very  same  principle  as  a  monarch,  who  interferes 
himself  and  does  not  leave  matters  to  their  proper  authorities, 
even  in  absolute  monarchies,  is  considered  to  act  despotically, 
that  the  people,  if  they  hold  the  supreme  power,  must  not  act 
themselves  but  through  agents.  He  who  has  power,  abso- 
lute and  direct,  abuses  it;  man's  frailty  is  too  great;  man  is 
not  made  for  absolute  power. 

Everywhere  it  is  now  considered  tyrannical — it  was  even  so 
under  so  absolute  a  king  as  Louis  XIV. — when  a  monarch 
sits  in  judgment  himself;  and  it  is  tyranny,  likewise,  if  the 
people  do  not  judge  through  their  courts.  Frederic  the  Great, 
who  was  very  anxious  to  remove  a  wind-mill  close  before  the 
centre  window  of  his  favorite  palace  at  Potsdam,  could  not 
induce  the  miller  to  sell  it.  The  king,  irritated,  threatened 
the  owner  to  force  him  to  consent.  "There  is  a  supreme 
court  in  Berlin,"  answered  the  miller.  The  king  was  silent, 
and  the  mill  stands  to  this  day,  an  annoyance  to  the  palace, 
but  one  of  the  best  monuments  which  an  absolute  monarch 
ever  erected  to  himself,  as  an  ambassador  wrote  home  from 


REPRESENTA  TIVE  PRINCIPLE. 


329 


Potsdam,  It  was  stated  of  late  that  the  present  owner  was 
very  anxious  to  sell  the  mill,  but  the  descendant  of  Frederic 
considers  it  too  proud  a  monument  of  his  forefather  to  allow 
it  to  be  removed.  I  do  not  know  that  there  is  anything  to 
which  an  American  can  point  with  greater  pride  than  the 
decisions  of  his  courts  by  which  even  legislative  enactments 
have  been  declared  unconstitutional,  and  which  decisions  are 
still  in  force.  We  shall  see  that  the  independence  of  the  ju- 
diciary is  one  of  the  most  important  guarantees  of  civil  liberty. 
England  owes  her  greatness,  in  a  high  degree,  to  her  inde- 
pendent judiciary,  to  the  independence  of  the  law.  It  is, 
therefore,  a  political  error  that  some  states  have  made  the 
judges  eligible  for  a  {q'n  years  only.  It  is,  in  fact,  the  major- 
ity— not  even  the  people,  the  sovereign,  which  would  be  bad 
enough — taking  the  administration  of  justice  into  their  own 
hands,  on  the  ground  that  they  shall  administer  it  according 
to  the  sense  of  the  people.  There  is  tyranny,  where  the 
holder  of  power  sits  in  judgment  or  influences  it. 

CXV.  If  it  be  true,  as  already  mentioned,  that  a  multitude, 
in  many  cases,  are  not  so  subject  to  sudden  impulses  as  an 
individual,  it  is  equally  true  that  it  is  more  difficult  to  dis- 
abuse a  multitude  than  an  individual.  There  are  several 
other  points  which  we  have  yet  to  consider  in  comparing 
monarchical  and  democratic  absolutism.  It  has  been  fre- 
quently observed,  after  Lord  Coke,  that  "  corporations  are 
without  souls."  Why  is  it  so  ?  Can  the  individuals  forming 
them  be  imagined  to  be  peculiarly  bad  ?  If  so,  it  could  not 
be  a  general  remark ;  for  corporations  may  consist  of  very 
different  persons.  The  answer  is  simply  this  :  because  re- 
sponsibility does  not  present  itself  so  distinctly  to  one  person 
in  a  multitude  as  to  an  insulated  individual.  Many  an  indi- 
vidual, indeed,  will  break  down  a  house,  nay,  commit  homi- 
cide, if  he  join  a  mob  or  become  the  member  of  a  criminal 
association,  who  would  shudder  at  taking  the  responsibility 
of  these  actions  individually  upon  himself^ 


»  To  what  a  fearful  degree  of  depravity  men  sink,  what  enormous  crimes  they 


330  THE  STATE. 

Another  remark  of  high  importance  is  to  be  made  respect- 
ing democratic  and  monarchical  absolutism.  What  is  abso- 
lutism, the  -aij.^aailzia  of  Anstotle  ?  The  striking  appear- 
ance, the  form  rather  than  the  essential  principle,  have  in  this 
case,  as  so  frequently,  misled.  Authors  and  politicians  treat 
of  absolutism  as  if  there  existed  none  but  monarchic  abso- 
lutism. It  is  not  so  in  reality.  A  late  writer,  Mr.  Dahlmann, 
defines  absolute  government  thus  :  "  When  government  has 
not  only  power,  but  all  power,  not  only  superioritas,  but 
absolutum  imperium,  it  is  absolute  government."  This  seems 
to  be  a  circle;  absolute  government  is  absolutum  imperium. 
No  doubt  it  is,  because  it  is  the  same  expressed  in  two  lan- 
guages. I  would  say,  wherever  all  power  that  can  be  ob- 
tained is  undivided,  unmodified,  and  un-mcdiatised,  some- 
where, whether  apparently  in  an  individual,  or  a  body  of  men, 
or  the  whole  people,  which  means  in  this  case  of  course  the 
majority,  there  is  absolutism.  The  Athenian  democracy  sank 
into  absolutism.  I  shall  recur  to  this  subject.  Comparing 
democratic  and  monarchical  absolutism,  we  shall  find  that  the 
latter  must  needs  rest  its  power  somewhere  without  the  mon- 
arch himself;  for,  as  has  been  several  times  observed,  the 
monarch  has  personally  no  more  power  than  the  meanest  of 
the  crowd.  He  must  be  supported  by  opinion  without  him  ; 
but  democratic  absolutism  is  power  itself — it  is  a  reality — 
fearfully  sweeping  power.  It  is  real  power,  a  torrent  which 
nothing  can  stem.  If  an  individual  opposes  monarchical  ab- 
solutism, there  is  something  heroic  in  it  in  the  eyes  of  the 
people  ;  if  a  man  opposes  democratic  absolutism,  he  is  at  once 
considered  a  heretic,  a  traitor  to  the  common  weal.  On  the 
other  hand,  there  is,  indeed,  a  difference  in  democratic  abso- 
lutism, namely,  that  at  its  height  it  necessarily  leads  to  anar- 
chy, and  hence  to  a  change  ;  for  anarchy  is  against  the  nature 


may  be  ready  to  commit  as  members  of  a  society,  under  a  common  pledge,  was 
lately  exhibited  in  the  trial  of  the  Glasgow  cotton-spinners,  in  Edinburgh,  Jan- 
uary, 1838.  A  society  had  been  formed  for  the  purpose  of  keeping  up  high 
wages,  not  disdaining  atrocities  and  murder  as  a  means  to  effect  their  object.  If 
a  murder  was  to  be  committed,  the  lot  decided  who  should  commit  it. 


POLITICAL  FLATTERY. 


331 


of  man,  and  nothing  remains  long  which  contends  against  its 
own  nature;  while  monarchical  absolutism  may  lasl:  centuries, 
as  in  Asia.  Democratic  absolutism  may,  if  not  at  its  height, 
yet  in  an  obnoxious  degree,  exist  for  a  long  time,  in  lesser 
communities. 

CXVI.  The  untenable  ground  on  which  absolutism,  of 
whatever  kind,  rests,  can  be  shown  also  in  this  way.  Ab- 
solute power  in  the  state  necessarily  demands  absolute  obe- 
dience, for  without  obedience  to  government  there  is  no 
government.  What  other  meaning  has  authority  than  that 
in  some  way  or  other  it  can  direct  our  actions  ?  We  cannot 
say,  then,  "  here  is  absolute  power,  but  the  citizen  need  not 
obey  if  he  choose  not  to  do  it."  It  would  be  a  contradiction 
in  itself;  it  would  not  be  absolutism.  Are  the  minority  not 
bound  to  absolute  obedience,  though  the  majority  have  abso- 
lute power  ?  These  are  contradictory  terms.  But,  as  I  have 
had  repeated  occasion  to  observe,  and  as  we  shall  farther  see 
in  the  chapter  on  Obedience  of  the  Laws,  absolute  obedience 
is  not  only  immoral  but  impossible.  Absolutism,  therefore, 
in  whatever  shape,  falls  to  the  ground. 

CXVII.  Where  power  lodges,  thither  flattery  flows.  The 
prince — I  here  use  this  word  not  only  for  monarchs,  but  as 
the  Venetians  were  in  the  habit  of  using  it  of  their  large  body 
of  nobles,  who  jointly  had  the  supreme  power,  of  the  power- 
holders  in  general,  whoever  they  may  be — the  prince  loves 
flattery.  Let  us  always  beware  of  it.  Every  one  loves  flattery 
— we  too,  if  we  have  power.  Power,  it  will  be  remembered, 
.  has  an  inherent  tendency  to  absorb,  increase,  extend  ;  and 
interested  men  will  always  be  found  in  abundance  to  help 
along  this  tendency,  because  it  is  pleasing  to  power  to  in- 
crease. Every  prince,  used  in  the  above  sense,  finds  his 
courtier.  Republics  are  not  freer  from  base  courtiers  than 
monarchs.  The  power-holder  finds  always  ready  instruments ; 
and  we  ought  early  to  learn  how  to  guard  against  the  flatter- 
ing insinuations  of  those  who  live  in   the  wake  of  power. 


332  •  THE  STATE. 

Power  loves  to  be  flattered,  the  same  flatteries  are  ever  re- 
peated. The  Turkish  conquerors,  the  Solymans,  Mustaphas, 
Mahmouds,  loved  to  hear  their  fury  compared  to  the  ire  of 
God  and  the  lightnings  of  the  heavens;  and  we  have  seen 
already  how  the  revenge  of  the  French  people  in  the  first 
revolution  was  complacently  or  cunningly  compared  to  vast 
natural  phenomena.  Demagogues  are  but  courtiers,  though 
the  court  dress  of  the  one  may  consist  in  the  soiled  handker- 
chief of  a  Marat,  that  of  the  other  in  silk  and  hair-powder. 
The  king  of  France  was  told  in  1827,  "The  royal  absolute 
power  exists  by  natural  right.  Every  engagement  against 
this  right  is  void.  Thus  the  prince  is  not  obliged  to  keep 
his  oath;"'  and  in  America  the  people  of  a  large  state  were 
lately  urgently  advised  to  break  a  solemn  engagement,  be- 
cause they,  the  majority,  had  sovereign  power.  When  Napo- 
leon was  at  the  summit  of  his  power,  the  archbishop  of  Paris 
wrote  to  his  bishops  in  a  pastoral  letter,  "  Servants  of  the 
altars,  let  us  sanctify  our  words ;  let  us  hasten  to  surpass 
them  by  one  word,  in  saying  he  [Napoleon]  is  the  man  of 
the  right  hand  of  God ;"  ^  and  one  of  the  presidents  of  the 


*  A.  R.  Dedilon,  Coup-d'oeil  sur  les  Constitutions  et  les  Parties  en  France^ 
Lyons,  1827. 

*  Goldsmith,  Histoire  secrete,  page  130.  Can  the  author  have  invented  it? 
I  only  know  it  from  that  work.  The  bishop  of  Amiens  says  in  his  viandetneni, 
"  The  Almighty,  having  created  Napoleon,  rested  from  his  labors."  Fabre  de 
I'Aude,  president  of  the  tribunal,  said  to  Napoleon's  mother,  "  The  conception 
you  have  had,  in  carrying  in  your  bosom  the  great  Napoleon,  was  certainly  no- 
thing else  than  a  divine  inspiration."  It  is  well  for  us  fearlessly  to  see  how  far 
man  is  ever  ready  to  err,  as  soon  as  opportunity  ofiers.  Shall  we  wonder  that 
the  Romans  deified  their  emperors  and  worshipped  their  images?  If  power  had 
such  effect,  so  shortly  after  one  of  the  bloodiest  revolutions  in  the  name  of  lib- 
erty, after  the  Christian  religion  had  been  professed  for  centuries,  a  religion 
which  teaches  that  the  mightiest  emperor  is  but  a  sinful  servant  in  the  presence 
of  God,  should  we  be  surprised  that  the  Roman  emperor  was  considered  godlike 
by  the  subject,  whose  gods  had  abandoned  him  ?  (See  chapters  xii.  and  xiii. 
of  Book  II.) 

It  is  not  good,  between  individuals,  to  rake  up  past  follies;  it  is  noble  not 
only  to  forgive  but  truly  to  forget.  What  is  true  of  individuals  holds  likewise  of 
nations.  Not,  therefore,  to  offend,  I  wish  that  some  one  would  publish  the  most 
remarkable  addresses  made  to  Napoleon  in  and  out  of  France :  I  wish  it,  that 


POLITICAL  FLATTERY.  333 

United  States  (General  Jackson)  was  told  in  a  pamphlet  that 
he  was  the  actual  representation  and  embodiment  of  the  spirit 
of  the  American  people,  the  personification  of  American  de- 
mocracy, that  is,  of  the  American  nation. 


we  may  have  them  as  a  mirror  of  ourselves ;  for  is  it  not  our  o^vn  time  which 
committed  these  guilty  follies  ?  No  man  can  improve  unless  he  reflect  at  times 
seriously  on  his  past  life;  so  it  is  with  nations,  with  mankind. 


CHAPTER     XI. 

rolitical  Atony  one  of  the  greatest  Evils. — The  Ancient  Tyrannies. — Variety  of 
]\Ieans  to  Check  the  Abuse  of  Power. — Can  Power  be  controlled  ?— ^Vho  con- 
trols the  controlling  Power?  —  Constitutions.  —  Are  Written  Constitutions  of 
any  Value?  —  Constitutions  are  Indispensable.  —  Various  Reasons  why  and 
Circumstances  when  Written  Constitutions  are  desirable  or  necessaiy.  — 
Division  of  Power;  Legislative,  Executive,  and  Judiciary.  —  Great  Danger 
resulting  from  Confusion  of  these  Branches,  in  Republics  as  much  as  in 
Monarchies. — Importance  of  the  Separation  of  the  Executive  from  the  Legis- 
lature.— Vast  Importance  of  an  Independent  Judiciary. — What  does  Inde- 
pendent Judiciary  mean?  —  The  farther  political  Civilization  advances,  the 
more  independent  does  the  Judiciary  become. 

CXVIII.  The  state  requires  power;  without  public  power 
government  cannot  act,  it  cannot  obtain  its  object,  is  unable 
to  protect,  and  to  enforce  obedience  to  the  laws ;  yet,  on  the 
other  hand,  all  power  has  a  tendency  to  increase.  Without 
power,  government,  the  laws  themselves  become  despicable, 
political  immorality  and  along  with  it  all  other  immorality 
increases  like  a  very  cancer  of  society.  This  state  of  things 
may  be  called,  borrowing  a  term  from  the  healing  art,  atony, 
the  necessary  forerunner  of  a  change  of  governinent  either 
directly  or  by  the  intermediate  state  of  anarchy,  which  I 
distinguish  from  the  former  by  this,  that  atony  is  a  state  of 
general  disregard  of  law  from  weakness,  want  of  energy,  a 
depression  of  the  vital  spirits  of  society  ;  while  by  anarchy  I 
would  denote  rather  a  chaotic  stirring  of  the  elements  of 
society,  open,  forcible,  avowed  disregard  of  the  laws,  and  of 
the  principles  of  political  society.  Atony  existed  under  the 
Merovingians,  anarchy  frequently  in  the  feudal  times.  Atony 
exists   in  some  parts  of  Turkey,  anarchy  in  some  parts  of 

Spain. 

If,  on  the  other  hand,  power  is  permitted  to  go  on  increas- 
inn-  it  leads  to  despotism,  by  which  is  meant  that  state  of  the 
334 


THE  ANCIENT  TYRANNIES.  33^ 

political  society  in  which  power  alone  d  i  Ics,  because  it  is 
power.  Despotism  may  consist  in  \\\:  ;  l)use  of  supreme 
power  for  purposes  entirely  at  varianc:;  willi  or  hostile  to  the 
objects  of  the  state,  in  which  case  wc  call  it,  in  modern  times, 
tyranny.  The  ancient  word  tyrannis  meant  something  dif- 
ferent :  it  was  usurpation  of  supreme  power,  not  necessarily 
connected  with  cruelty  or  oppression.  Pisistratus  was  called 
a  wise  tyrant.  Or  he  that  has  the  supreme  power  may  use 
more  than  has  been  granted  him ;  in  other  v/ords,  the  legiti- 
mate limits  of  public  power  may  be  transgressed.  In  the 
latter  case,  though  despotism  exist,  it  may  still  use  the  public 
power  for  purposes  of  general  utility.  A  nation  on  its  guard 
never  suffers  it;  but  too  frequently  does  tyranny  creep  in  as 
popular  despotism.  (See  Hermeneutics.)  A  process  perhaps 
still  more  remarkable,  and  yet  frequently  exhibited  in  history, 
is  that  by  which  despotism  steals  into  power  by  opposition  to 
power.  It  is  a  very  common  mistake  of  the  unwary  to  con- 
sider opposition  to  power  at  once  as  an  indication  of  love  of 
liberty;  yet  that  the  contrary  can  take  place  has,  among 
many  instances,  sufficiently  been  proved  by  the  attacks  of 
the  Jesuits  or  their  adherents,  with  the  ablest  pens  and  the 
sharpest  daggers,  upon  many  Protestant  governments.'  What- 
ever our  opinion  of  that  remarkable  society  maybe,  I  suppose 
,we  all  agree  that  it  was  not  civil  liberty  they  strove  for.  Some 
of  the  most  vehement  speeches  in  favor  of  popular  liberty  on 
the  floor  of  the  French  chamber  of  deputies  are  made,  at 
present,  by  the  adherents  of  elder  Bourbons. 

CXIX.  A  variety  of  expedients  to  retard  the  increase  and 


'  Mariana,  de  Rege  et  Regis  Institutione.— Balthazar  Gerard,  the  assassin  of 
William  of  Orange  surnamed  the  Silent. 

When  the  estates  of  France  were  assembled  for  the  last  time,  in  1614,  at  the 
diet  already  mentioned,  the  bishops  maintained  that  "  the  church  is  authorized  to 
depose  kings,"  and  the  nobility  added,  "  the  abuse  of  power  is  a  legitimate 
ground  for  deposition."  The  third  estate  alone  denounced  these  principles. 
And  what  was  called  abuse  of  power  ?  There  existed  no  greater  in  the  eyes  of 
the  clergy  and  nobility  than  interference  with  their  immunity  from  taxes.  It  was 
this  and  the  possible  leaning  to  Protestantism  which  was  meant  in  this  case. 


33^ 


THE  STATE. 


regulate  the  use  of  power  have  been  resorted  to,  some  of 
which  shall  be  considered  here.  The  only  way  of  avoiding 
effectually  the  evil  is  to  prevent  the  generation  of  too  much 
power,  which,  however,  is  not  easy,  for  the  simple  reason  that 
public  power  must  exist,  and  if  it  exists,  no  matter  where, 
it  not  only  tends  to  increase  by  itself,  but  always  finds  both 
assistance  and  general  respect.  (See  previous  chapter  on 
Power.) 

Much  has  been  said  of  the  control  of  power.  Who  can 
control  power?  Of  course,  only  he  who  has  greater  power. 
But  the  very  object  of  all  inquiry  connected  with  this  subject 
is  to  find  out  how  that  greatest,  strongest  power,  no  matter 
who  wields  it,  who  is,  in  fact,  the  prince,  can  be  prevented  from 
growing  stronger  than  the  interests  of  society  require.  Con- 
trol of  power  would  mean,  therefore,  self-control,  which  in  this 
case  would  have  no  meaning.  There  may  be  one  authority 
controlling  another,  for  instance,  a  council  may  control  a  gov- 
ernor ;  there  may  likewise  be  a  check  on  the  supreme  power 
in  various  ways,  for  instance,  by  public  opinion ;  but,  strictly 
speaking,  the  supreme  power  cannot  be  controlled  as  far  as  it 
exists,  if  there  be  any  disposition  to  abuse  it,  which  is  espe- 
cially the  case  in  all  periods  of  intense  political  interest.  The 
question  then  is,  how  to  prevent  the  existence  of  too  great  an 
amount  of  power. 

CXX.  One  of  the  most  common  means  resorted  to  are 
constitutions.  Constitutions  are  the  assemblage  of  those 
publicly  acknowledged  principles  which  are  deemed  funda- 
mental to  the  government  of  a  people.  They  refer  either  tb 
the  relation  in  which  the  citizen  stands  to  the  state  at  large, 
and,  consequently,  to  government,  or  to  the  proper  delineation 
of  the  various  spheres  of  authority.  They  may  be  collected, 
written,  and  may  have  been  pronounced  at  a  certain  date,  such 
as  the  constitution  of  the  United  States ;  or  the  fundamental 
principles  may  be  scattered  in  acknowledged  usages  and  pre- 
cedents, in  various  charters,  privileges,  bills  of  rights,  laws, 
decisions  of  courts,  agreements  between  contending  or  other- 


WRITTEN  CONSTITUTIONS.  337 

wise  different  parties,  etc.,  such  as  the  constitution  of  Great 
Britain  is.  We  hear,  therefore,  frequently  of  the  constitutions, 
not  constitution,  of  a  realm  or  principality.  Thus,  the  ancient 
fundamental  laws  of  some  of  the  Belgian  states  before  the 
war  of  independence  of  the  Netherlands  against  Spain  were 
exceedingly  complicated,  consisting  as  they  did  of  a  great 
variety  of  special  grants  and  charters  as  well  as  their  partial 
nullifications.' 

Considering  how  much  more  beneficial  it  is  if  an  institution 
has  grown  out  of  the  healthy  action  of  a  people  and  devel- 
oped itself  along  with  the  state  of  society,  in  other  words,  if 
an  institution  has  its  deep  roots  in  the  history  of  a  nation, 
and,  on  the  other  hand,  how  lifeless  the  best-sounding  written 
constitution  remains  if  merely  recorded  in  the  archives,  de- 
prived of  the  necessary  fibres  through  which  it  draws  aliment 
from  the  actual  life  of  the  people,  many  persons  have  thought 
fit  to  deride  the  idea  of  written  constitutions,  and  have  de- 
clared them  to  be  useless.^  The  great  power  of  a  precedent 
in  England,  and  the  hollowness  of  many  declarations  in  the 
constitutions  of  some  newly-emancipated  nations,  afforded 
them  a  strong  contrast.  There  are  writers  on  politics,  indeed, 
who  have  condemned  the  whole  idea  of  settled  constitutions, 
asking  whether  a  family  father  would  believe  that  he  could 
establish  peace  and  harmony  in  his  house  by  placarding  at 
the  door  a  series  of  regulations.  This  question  rests  on  the 
unfortunate  mistake  of  making  no  difference  between  the 
family  and  the  state,  treated  of  in  a  previous  chapter.  If  the 
family  grows  very  large,  occupying  several  houses,  and  yet 


'  For  a  classification  of  constitutions  according  to  the  various  principles  on 
which  they  are  founded,  as  the  subject  has  appeared  to  me,  see  the  article  "  Con- 
stitution" in  the  Encyclopedia  Americana,  or  the  same,  copied  in  the  London 
Cyclopedia. 

*  *  The  English  are  constantly  cited  by  the  deriders  of  enacted  constitutions; 
but  it  is  forgotten  that  they,  like  any  other  people,  enact  "  written"  constitutions 
when  necessary.  They  give  real  "written"  constitutions  to  their  colonies, 
Canada,  New  Zealand,  etc.  And  they  must  do  so.  How  else  can  they  trace  the 
frame  of  a  new  government  ? 

22 


338  THE  STATE. 

frequently  assembles,  it  has  even  then  in  the  family  been  found 
serviceable  to  settle  certain  regulations,  and  to  adjust  the  dif- 
ficulties that  may  occur,  by  a  family  council  of  the  elder 
members.  Rights  not  only  may  be,  but  ought  to  be,  clearly 
pronounced. 

CXXI.  Those  who  dream  of  patriarchal,  paternal,  or  what- 
ever other  relations  of  the  kind,  between  the  government  and 
the  governed,  in  a  nation  at  all  advanced,  claiming  absolute 
power  on  the  ground  of  natural  love,  which  ought  to  exist 
between  the  prince  and  the  subject,  as  a  matter  of  course  ob- 
ject to  constitutions.  Ferdinand  VII.  of  Spain  was  told  that 
God  had  made  him  father  of  his  country  (his  mother  lived  in 
continued  adultery),  and  that  it  was  rising  against  God  to 
attempt  to  deprive  him  of  unlimited  power  to  do  good.  The 
abject  flattery  of  many  courtiers,  judges,  and  most  officers  in 
high  authority  under  Elizabeth  and  James  was  equally,  some- 
times still  more,  blasphemous. 

It  will  appear  from  the  whole  view  of  the  state,  and  the 
relations  of  the  individual  to  it,  which  has  been  taken  in  this 
work,  that  constitutions  are  indispensable.  They  will  invari- 
ably be  established,  or  naturally  grow  up  with  the  progress 
of  political  civilization.  For  they  are  nothing  more  than  the 
distinct  acknowledgment  and  clear  expression  of  certain  prin- 
ciples deemed  fundamentally  and  essentially  important  to  the 
well-being  of  society  and  the  due  protection  of  the  citizen  : 
the  higher  the  degree  of  civilization,  the  greater  their  clear- 
ness. Civilization  invariably  tends  towards  the  clearer  de- 
velopment of  principles,  in  politics,  as  well  as  in  any  other 
branch. 

Written  constitutions  are  desirable  for  the  following 
reasons  : 

I.  Where  the  political  life  of  a  people  has  been  unpropitious 
for  the  foundation  and  growth  of  civil  institutions,  they  are 
frequently  the  only  possible  starting-point,  and,  however  slow, 
superficial,  or  deficient  their  action  may  be  for  a  long  time, 
still  they  form  often  the  first  available  means  to  give  civic 


WRITTEN  CONSTITUTIONS. 


339 


dignity  and  political  consciousness  to  a  people,  as  well  as  the 
beginning  of  distinct  delineation  of  power.  The  French,  in- 
deed, have  had  many  constitutions  within  the  last  fifty  years ; 
but  similar  phenomena  will  appear  in  other  spheres.  Talley- 
rand has  sworn  allegiance  to  a  great  many  governments ; 
Cranmer  recanted  about  six  times.  Not,  indeed,  that  I  con- 
sider the  latter  as  natural  or  excusable  as  the  former.  What 
had  Talleyrand,  or  any  Frenchman,  to  do,  if  the  government 
of  the  "country  were  changed  ? 

2.  Constitutions  form,  in  times  of  political  apathy,  if  not  too 
great,  a  passage,  a  bridge,  to  pass  over  to  better  times.  When 
civic  consciousness  is  too  weak,  and  patriotism  too  low,  to 
repel  encroachments  by  their  own  action,  they  are  still  some- 
times sufficient  to  do  so  with  the  aid  of  a  well-settled  and 
clearly  pronounced  constitution. 

3.  It  gives  a  strong  feeling  of  right,  and  a  powerful  impulse 
of  action,  to  have  the  written  law  clearly  on  one's  side,  and 
though  power,  if  it  comes  to  the  last,  will  disregard  the 
written  law  as  well  as  the  customary,  yet  it  must  come  to  the 
last  before  it  dares  to  pass  the  Rubicon  and  to  declare  revo- 
lution. Many  a  time  has  power  been  checked  by  the  appall- 
ing consciousness,  Thou  art  going  to  break  the  fundamental 
law,  the  established  law  of  thy  land  :  into  thy  hands  it  was 
confided,  and  art  thou  becoming  its  assassin?  ' 

4.  It  is  our  duty  to  define  things  as  clearly  as  we  possibly 
can  in  matters  of  a  jural  character.  Confusion  is  the  very 
opposite  to  right. 


«  The  Frenclr  revolution  of  1830  affords  a  remarkable  instance.  For  years  the 
government  was  afraid  to  take  certain  steps,  because  it  knevv^  it  was  against  the 
written  contract;  and  when  it  finally  did  propose  a  gross  violation  of  the  charter, 
or  rather  its  abolition,  the  consciousness  of  the  people  that  it  was  Prince  Polignac 
and  the  whole  court  party  and  ministry,  not  themselves,  who  were  breaking  the 
great  pact,  gave  them  an  energy  and  buoyant  vigor  without  which  the  revolution 
could  not  have  been  effected,  or,  if  it  could,  certainly  not  so  rapidly.  There  was 
a  great  degree  of  civil  alacrity  in  that  event.  Nor  would  this  powerful  change 
otherwise  have  been  immediately  acknowledged  by  nearly  all  Europe.  The  so- 
called  legitimate  governments  knew  very  well  who  had  been  the  aggressor. 


340 


THE  STATE. 


CXXII.  Constitutions,  however,  are  valueless  without  pub- 
lic spirit;  it  is  a  serious  error  to  believe  that  liberty  can  be 
made — can  be  decreed  on  parchment.  This  has  been  fre- 
quently used  by  absolutists  as  an  argument  against  constitu- 
tions altogether.  It  is,  however,  no  stronger  an  argument 
against  them  than  against  anything  written  in  this  world, 
whether  it  relate  to  religion,  science,  or  law.  There  is  not  a 
written  law  which  may  not  at  times,  and  if  the  judges  have  the 
mind  so  to  do,  be  stretched  and  distorted.  When  the  spirit 
is  gone,  the  letter  is  vapid.  But  it  cannot  be  denied  that  the 
mere  fact  of  distinctly  pronouncing  a  certain  principle  in  writ- 
ing can  do  much.  Nor  do  we  forestall  by  written  constitu- 
tions the  necessary  development  of  institutions ;  for  as  society 
is  never  stationary,  so  its  political  organization  cannot  be.  I 
have  dwelt  on  this  latter,  important  subject  in  the  Her- 
meneutics. 

Inasmuch,  then,  as  right  and  law  depend  in  a  great  measure 
upon  distinctness  (this  maybe  traced  in  the  history  of  politics 
or  law,  in  any  tribe  whatsoever),  and  as  constitutions  con- 
tribute to  give  this  distinctness,  as  well  as  to  lead  the  people 
gradually  to  greater  clearness,  and  inasmuch  as  all  confusion 
in  politics  has  a  necessary  tendency  to  abuse  and  tyranny, 
and  written  constitutions  define  the  spheres  of  action  of  the 
various  branches  of  government,  written  constitutions  are 
beneficial ;  and  for  those  nations  with  whom  the  historical 
development  has  not  been  such  as  to  lead  them  to  a  gradual 
and  clearly  acknowledged  growth  of  fundamental  political 
principles,  for  instance,  the  nations  of  Spanish  origin  in 
America,  they  are  necessary.  But  they  remain  means,  and 
we  must  beware  of  what  has  been  called,  in  another  part  of 
the  work,  idolatry  of  the  constitution  ;  for  it  is  the  living 
nation,  the  life  of  society,  which  is  the  object  of  the  state, 
and  therefore  of  the  constitution  likewise. 

CXXIII.  A  most  effective  means  to  prevent  the  natural 
expansion  of  power  has  been  sought  for  in  the  division  of 
power,  which  is,  perhaps,  not  a  very  happy  expression.     The 


DIVISION  OF  POWER.  241 

general,  and  certainly  the  most  important,  division  is,  as  is 
well  known,  into  the  legislative,  executive,  and  judiciary, 
though  this  is  not  the  only  one.  In  Brazil  there  are  four 
branches.  The  first  French  constitutions  speak  of  the  adminis- 
trative branch,  as  distinguished  from  the  executive  and  legis- 
lative, and  meaning  the  administration  of  the  communes,  etc. 

It  is  not  unfrequently  believed  that  this  idea  of  the  division 
of  power  is  due  to  Locke;  more  generally,  Montesquieu  is 
considered  as  the  author  who  first  settled  it  well.  Aristotle, 
however  (Pol.,  iv.  14-16),  already  makes  this  division,  though 
I  grant  that  only  in  modern  times  has  this  great  principle 
fairly  gone  into  operation. 

That  a  clear  division  of  these  authorities  must  necessarily 
at  least  retard  the  increase  of  power,  is  evident.  It  is  for 
the  science  of  politics  proper  to  show  the  natural  foundation 
of  this  division,  as  well  as  the  vast  advantage  flowing  from 
it,  and  that  it  is  a  most  powerful  guarantee  of  civil  liberty, 
especially  if  united  with  certain  others ;  whatever  opinion  to 
the  contrary  may  have  become  fashionable  of  late  with  a  cer- 
tain mystic  school  who  ridicule  the  division  of  power,  asking 
where  we  find  it  in  nature,  and  whether  the  small  states,  in 
which  no  proper  division  exists,  are  not  some  of  the  happiest. 

If  the  state  is  a  jural  institution,  nothing  can  be  more  evi- 
dent than  that  a  clear  division  of  the  government  functions 
must  aid  in  protecting  the  members  of  the  state.  It  is  objected 
that  the  branches  were  divided  in  the  first  French  revolution, 
and  yet  what  tyranny!  But  the  true  answer  is,  they  were  not 
divided :  on  the  contrary,  the  French  so-called  republic  was 
always  materially  a  concentrated  government.  Absolute 
power  had  passed  from  the  crown  to  the  assembly,  the  com- 
mittee of  public  welfare,  etc.  Besides,  there  existed  in  other 
respects  the  greatest  political  confusion,  which  is  always  tyr- 
anny or  soon  leads  to  it.  The  people,  that  is,  some  of  them, 
in  Paris,  resolved,  demanded,  dictated,  besieged  the  legislative 
hall,  or  appeared  in  a  threatening  attitude  at  the  bar  of  the 
assembly.  That  citizens  have  the  right  to  petition  is  clear; 
that  they  may  recommend  certain  citizens  for  certain  places 


342 


THE  STATE. 


is  equally  clear,  though  it  would  be  certainly  a  safe  principle 
that  only  private  recommendations  ought  to  be  given ;  but 
organized  party  meetings,  recommending  not  one  citizen  but 
the  entire  personnel  within  a  certain  district  at  the  change  of 
an  administration,  certainly  border  very  closely  on  political 
confusion,  for  it  is  not  the  people  that  make  this  selection. 
Even  if  the  people  of  the  whole  district  were  unanimous,  they 
would  be  but  a  very  limited  part  of  the  whole.  In  reality, 
however,  it  is  only  the  portion  of  the  party  in  power  within 
the  district  that  assume  this  appointment.  I  call  it  appoint- 
ment, for  we  well  know  that  recommendations  of  such  an  or- 
ganized sort  go  in  their  character  much  farther  than  simple 
petitions.  Once  more,  confusion  of  branches,  powers,  and 
spheres  of  action  is  certain  to  lead  to  despotism.  From 
the  long  accounts,  contained  in  the  papers,  of  a  meeting  held 
on  March  7,  1837,  in  Philadelphia,  in  consequence  of  which 
a  long  list  of  candidates  for  various  offices  was  recommended 
to  the  new  President,  it  seems  that  it  was  of  the  kind  mentioned. 
(See  Niles's  Weekly  Register,  Baltimore,  March  18,  1837.) 

We  farther  hear  that,  in  despite  of  all  so-called  division  of 
power,  the  executive  will,  if  strong  enough,  seizes  upon  the 
others,  and  how  can  they  resist,  since  the  executive  has  the 
actual  power — the  army  and  navy,  the  money  and  the  distri- 
bution of  honor  ?  In  this  objection,  started  very  frequently 
by  a  writer  who  in  his  wishes  belongs  to  the  liberal  portion 
of  mankind,  there  are  two  mistakes  : 

1.  Power  does  not  only  consist  in  the  army,  navy,  and 
money;  public  opinion,  which  is  gained  by  nothing  so  firmly 
as  by  a  continued,  even,  and  just  administration  of  justice, 
and  which  has  been  frequently  obtained  by  this  alone,  despite 
of  the  glaring  corruption  of  the  other  branches,  is  power  in- 
deed. The  army  and  navy  must  first  be  gained.  Though 
the  executive  may  have  the  supreme  command  over  them,  it 
does  not  rule  them  like  machines. 

2.  It  is  wrong  to  argue  that  because,  in  times  of  extremity, 
one  power  may  not  be  able  to  withstand  another,  therefore  il 
is  of  no  use.     The  division  of  power  may  prevent,  and  often 


INDEPENDENCE   OF   THE    JUDICIARY. 


343 


has  prevented,  this  very  extremity.  It  is  the  same  here  as 
with  constitutions :  are  they  never  worth  anything  because, 
in  times  of  extremity,  he  who  has  the  army  will  tear  the 
charter  and  dictate  a  new  one  if  he  thinks  proper — that 
is,  if  the  current  of  events  and  of  ideas  of  his  party  make 
it  advisable  ? 

CXXIV.  The  separation  of  the  executive  from  the  legis- 
lative is  highly  important  for  the  simple  reasons  that,  if 
united,  power  will' decree  laws  to  increase  power,  and  specific 
laws  or  decrees  will  be  made  in  specific  cases,  according  to 
convenience.  Few  things,  however,  are  more  necessary  in  a 
well-regulated  community  than  that  laws  be  general  rules, 
and  not  fickle,  not  vulgar,  as  Bacon  calls  them  in  his  History 
of  Henry  VH.  Even  unsuitable  laws  lose  very  frequently 
part  of  their  evil  tendency  by  being  acknowledged  and  not 
changeable  according  to  single  cases.  Nothing,  however,  is 
of  so  vital  importance,  of  so  momentous  influence,  as  the  in- 
dependence of  the  judiciary,  which  has  already  been  briefly 
touched  upon.  It  is  at  once  the  noblest  and  most  conciliatory 
principle  in  the  state.  It  forms  the  choicest  subject  for  the 
lover  of  civil  history.  By  the  independence  of  the  judiciary 
is  not  meant  separation  from  the  rest  of  the  state.  The  Turk- 
ish hakim  or  cadi  is  simply  judge  according  to  the  written 
law,  and  always  separate  from  the  sabit,  the  executive  officer, 
throughout  the  Turkish  empire.'  The  hakim,  however,  is  an 
arbitrary  judge,  as  long  as  the  interest  of  the  pasha  or  sultan 
is  not  involved ;  and,  on  the  other  hand,  the  Turk  is  not  pro- 
tected against  being  put  out  of  the  pale  of  the  law  and  dealt 
wi  h  according  to  entirely  different  interests  or  principles. 

Vagueness  in  the  use  of  terms  has  done  its  mischief  in  the 
discussions  on  this  subject.  If  independence  is  claimed  for 
the  judiciary  by  some,  others,  not  unfrequently,  understand  it 
as  if  arbitrary  power  in  the  judges  were  meant,  while,  on  the 


»  Von   Hammer,  Political  Constitution  and  Administration  of  the  Osmanic 
Empire,  vol.  ii.  page  388,  in  the  German. 


344 


THE  STATE. 


contrary,  we,  the  advocates  of  an  independent  judiciary,  desire 
the  individuals  who  may  happen  to  be  judges  to  be  the 
very  serfs  of  the  law,  but  of  the  law  alone — its  organs,  its 
proclaimers.  And  why  ?  Because  the  law  is  the  only  rule 
given  for  the  regulation  of  the  actions  of  the  citizens,  or  ought 
to  be  the  only  rule ;  because  the  law  is  the  principle,  and 
where  this  has  not  superior  sway  the  accidental  individuality 
of  the  person  in  authority  must  take  its  place,  and  there  is  an 
end  of  justice,  of  a  strict  government  of  law,  of  right — an 
abandonment  of  that  principle  on  which  we  have  ascertained 
the  state  to  be  truly  and  verily  founded.  The  law,  as  I  said, 
is  a  general  rule,  a  principle ;  it  remains  something  abstract, 
until  brought  home  to  practical  life,  to  the  cases  of  reality, 
and  when  brought  home,  those  who  do  so,  those  who  fix  and 
link  the  generality  of  the  law  to  the  individual  case,  ought  to 
be  placed  in  the  best  possible  manner  which  human  wisdom 
can  devise  for  the  unbiassed  application  of  the  abstract  rule  to 
the  practical  instance.  It  is  not  only  that  true  justice  be  done 
according  to  the  merits  of  each  case,  which  makes  this  bring- 
ing home  of  the  law  to  every  one  so  important ;  liberty  in  its 
deepest  meaning,  individual  and  national,  depends  greatly 
upon  it.  Lord  Strafford,  the  lofty  absolutist  and  penetrating 
statesman,  mentions  in  one  of  his  first  despatches  after  his 
arrival  in  Ireland,  to  Cooke,  that  one  of  the  greatest  restraints 
on  his  predecessor,  Lord  Falkland,  had  been  that  he  could 
not  meddle  in  causes  betwixt  party  and  party,  "  which  cer- 
tainly did  lessen  his  power  extremely."  Strafford  adds,  "  yet 
how  well  this  suits  with  monarchy,  when  they  (the  lawyers) 
monopolize  all  to  be  governed  by  their  year-books,  you  in 
England  have  a  costly  experience ;  and  I  am  sure  his  maj- 
esty's absolute  power  is  not  weaker  in  this  kingdom,  where 
hitherto  the  deputy  and  council-board  have  had  a  stroke  with 
them."  Strafford  saw  right.  Destroy  the  bulwark  of  the 
law  (and  you  do  destroy  it  as  soon  as  you  destroy  the  inde- 
pendence of  the  judiciary),  and  the  mighty  sea  of  power  will 
soon  break  in  upon  the  people. 

By  the  independence  of  the  judiciary  is  meant  a  judiciary 


INDEPENDENCE   OF  THE   JUDICIARY.  345 

that  in  the  administration  of  justice  cannot  be  influenced  or 
overawed  by  any  one,  or  anything,  either  by  monarch,  presi- 
dent, people,  or  populace,  but  which  is  strictly  dependent  upon 
the  law  and  the  spirit  which  made  it,  so  that  no  citizen  who 
ought  to  be  judged  by  it  can  be  rent  from  it,  or  be  judged 
or  punished  without  judgment  by  the  same,  or  otherwise 
be  injured  in  any  way,  by  the  protection  of  the  laws  being 
withheld  from  him.'  The  more  deeply  and  earnestly  we 
study  history,  the  more  sacred  will  appear  this  wonderful 
institution  of  an  independent  judiciary. 

The  English  or  American  judge  is  not  severed  from,  but 
closely  united  to,  the  state.  He  stands  under  the  law,  he 
moves  within  the  law,  his  authority,  yielded  to  him  by  the 
people,  is  only  given  to  him  as  the  minister  and  applier  of  the 
abstract  law,  the  principle;  he  does  not  make  the  principle; 
he  is  a  member  of  a  vast  church,  the  church  of  the  law ;  he 
is  not  the  arbitrary  hakim,  but  a  priest  of  justice,  according 
to  the  rules  of  the  people.  (As  to  the  necessity  of  interpreta- 
tion in  applying  the  law  in  many  cases,  see  Hermeneutics.) 
He  stands  under  the  public  press  and  public  opinion,  he  does 
not  settle  the  question  of  fact,  and  finally  he  owes  his  position 
as  a  judge  to  the  gradual  constitutional  development  of  the 
whole  nation. 

CXXV.  By  means  of  an  independent  judiciary  the  citizen 
stands  in  each  individual  case,  when  the  law  comes  home  to 
him,  under  the  constitutional  protection  of  the  court ;  by  the 
independence  of  the  judiciary  alone,  the  American  judge  can 
assume  that  elevated  function  of  declaring  a  law,  when  it 
finally  strikes  an  individual,  to  be  unconstitutional,  a  principle 
of  which  the  ancients  knew  very  little,  we  may  say  nothing,  if 
compared  as  to  its  practical  use  with  modern  times.     By  the 


'  *  And  so,  in  democracies,  if  the  judiciary  becomes  dependent,  the  popular 
power  will  break  in  upon  the  minority.  This  is  not  because  the  power-holders 
are  peculiarly  wicked  :  it  arises  from  a  tendency  of  human  nature  as  natural  and 
sure  as  the  laws  observed  by  the  chemist. 


346  THE  STATE. 

independence  of  the  judiciary  alone,  an  independent  develop- 
ment of  the  law,  according  to  the  genius  of  the  people  and 
the  essential  wants  of  the  times,  becomes  possible.  Without 
it,  the  best  intended  and  most  liberally  conceived  institutions 
and  political  organisms  will  always  become  what  a  distin- 
guished French  jurist  said  in  i8i8  of  the  administration  of 
justice  and  the  constitution  of  his  countiy:  "We  have  con- 
tented ourselves  to  place  a  magnificent  frontispiece  before 
the  ruins  of  despotism  ;  a  deceiving  monument,  whose  aspect 
seduces,  but  which  makes  one  freeze  with  horror  when  en- 
tered !  Under  liberal  appearances,  with  pompous  words  of 
juries,  public  debates,  judicial  independence,  individual  lib- 
erty, we  are  slowly  led  to  the  abuse  of  all  these  things  and 
the  disregard  of  all  rights  :  an  iron  rod  is  used  with  us  instead 
of  the  staff  of  justice."* 

The  necessary  independence  does  not  only  mean  independ- 
ence of  judges  upon  executive  influence,  it  likewise  means 
and  demands  the  division  of  functions,  already  spoken  of. 
For  if  the  courts  ought  to  be  independent,  and  they  are  not 
strictly  separate  from  legislative  or  administrative  functions, 
they  form  bodies  such  as  the  ancient  French  parliaments 
were,  which  frequently,  indeed,  were  of  service  to  the  people, 
considering  the  whole  confused  state  of  government,  but 
■\\4iich  cannot  be  tolerated  in  a  well-regulated  state  in  which 
the  various  spheres  of  political  action  have  been  carefully  de- 
fined. The  courts  in  other  states  were  frequently  charged 
with  the  collection  of  taxes  and  other  administrative  business. 
This  likewise  is  opposed  to  the  idea  of  judicial  independence, 
which,  I  repeat,  is  nothing  but  another  term  for  the  independ- 
ence of  the  law,  a  means  to  insure  the  truth  of  the  law,  that 
is,  that  the  law  be  law. 

No  human  wisdom  can  devise  any  plan  which  has  not  its 
inconveniences.  The  independence  of  the  judiciary  requires 
that  the  impeachment  of  judges  should  not  be  made  a  trifling 


'  Berenger,  De  la  Justice  criminelle  de  France,  Paris,  1818,  p.  2 — a  work  de 
serving:  decided  attention. 


INDEPENDENCE   OF  THE   JUDICIARY.  347 

affair,  dependent  upon  momentary  impulses.  This,  question- 
less, leads  in  some  cases  to  considerable  inconveniences.  But 
all  the  evils  resulting  from  the  independence  of  the  judiciary- 
are  trifling  indeed  compared  to  the  one  great  advantage — the 
government  by  law,  and  expulsion  of  the  government  by  human 
individuality,  which  alone  can  be  insured  when  the  judiciary 
is  independent.  Means  may  be  found  to  insure  the  one  with- 
out compromising  other  interests.  We  all  know  that  the 
infirmities  of  old  age,  in  the  natural  course  of  things,  impair 
the  energies  of  the  mind.  There  may  then  be  good  reason 
why  a  certain  age  should  be  fixed  beyond  which  no  judge 
should  sit  on  the  bench  ;  though  the  age  of  sixty  years,  as  it  is 
adopted  by  the  constitution  of  New  York,  as  the  maximum — 
the  age  when  the  Spartans  considered  their  citizens  only  ma- 
tured for  their  high  council,  the  gerusia  —  appears  certainly 
too  limited.  A  statistical  table  of  all  the  most  eminent 
judges  in  England  and  America,  with  their  ages,  would  in- 
controvertibly  prove  it.  From  a  calculation  I  have  made, 
though,  I  own,  it  has  not  been  made  on  a  scale  so  extensive 
as  to  be  entirely  satisfactory  to  myself,  I  should  be  inclined 
to  say  that  seventy  years  would  be  a  safer  maximum  age  for 
the  continuance  of  the  judge  in  office.  Still,  no  maximum 
age  is  infinitely  better  than  appointments  for  a  brief  term,  and, 
upon  the  whole,  I  believe  that  the  fixing  of  a  minimum  age 
for  a  judge  would  be  more  important  than  that  of  a  maximum. 
Bold  action  belongs  to  the  younger  age,  from  twenty-five  to 
forty;  wise  counsel  and  unbiased  calmness  to  the  riper  years. 
The  papal  hierarchy,  it  strikes  me,  has  never  had  occasion  to 
regret  the  advanced  age  of  most  popes,  so  far  as  the  wisdom 
of  their  counsel  is  concerned. 

An  independent  judiciary  is  likewise  an  institution  which 
will' regularly  develop  itself  with  the  progress  of  political 
civilization.  The  patriarch  is  father,  judge,  priest,  ruler — 
everything  that  implies  authority.  The  king  in  early  times 
holds  his  courts  in  person,  nay,  it  is  his  highest  attribute,  and 
justly  so  for  those  early  periods,  because  the  monarch  is  mis- 
taken for  the  state,  and  justice  is  its  essential.     David  sat  in 


348  THE  STATE. 

the  gate  and  dealt  out  justice,  and  St.  Louis  and  Louis  XIL 
administered  justice  under  an  oak-tree.  The  German  em- 
perors travelled  from  place  to  place  to  hold  courts  :  "  prin- 
cipes,  qui  jura  per  pagos  reddunt."  Now  it  is  considered 
daring  and  high-handed  interposition  if  the  monarch  inter- 
feres with  the  administration  of  justice  in  single  cases,  even  in 
theoretically  absolute  monarchies.  The  history  of  the  admin- 
istration of  justice  in  England  shows  the  same  progress.  The 
king's  personal  administration  became  rarer  and  rarer,  and 
George  III.  consummated  one  period  in  the  history  of  this 
important  subject  by  declaring,  in  the  beginning  of  his  reign, 
"  that  he  looked  upon  the  independence  and  uprightness  of 
the  judges  as  essential  to  the  imperial  administration  of  jus- 
tice ;  as  one  of  the  best  securities  of  the  rights  and  liberties 
of  his  subjects  ;  and  as  most  conducive  to  the  honor  of  the 
crown."  As  to  the  power  of  the  British  judge  to  declare  a 
law  unconstitutional,  it  is  held  by  many  that  he  does  not 
possess  it.  (See  Dwarris  on  Statutes,  beginning  of  vol.  ii.) 
Lord  Holt,  however,  did  it;  and  what  is  the  judge  to  do  if 
one  law  contends  with  another,  and  this  other  be,  for  instance, 
the  Declaration  of  Rights  ?  Can  he  possibly  do  anything 
else  but  declare  the  minor  law  to  be  second  to  the  other,  the 
fundamental  one  ?     (See  Hermeneutics.) 

CXXVI.  The  more  precise  division  of  the  functions  of 
government  on  the  one  hand,  and  its  increasing  wants  on  the 
other,  have  raised,  in  modern  times,  a  peculiar  check  on  pub- 
lic power  to  the  highest  practical  importance,  and  made  of  it, 
at  the  same  time,  the  reconciling  principle  in  cases  of  conflict 
between  the  legislature  and  the  monarchical  executive.  In 
former  times,  when  the  monarch  was  a  rich  nobleman,  with 
vast  domains  appertaining  to  his  house,  he,  frequently,  could 
carry  on  the  government,  such  as  it  was,  without  much  pe- 
cuniary assistance  from  the  people.  If  they  gave  it,  however, 
it  was  always  by  way  of  grant.  Powerful  changes  took  place 
in  the  course  of  time ;  the  wants  of  governments  became 
greater  in  the  same  degree  as  they  changed  from  feudal  gov- 


CONSTITUTIONAL  SUPPLIES. 


349 


ernments  into  national  ones ;  domains  were  alienated,  wars 
became  vaster;  in  fine,  monarchs  could  not  carry  on  the 
government  with  their  private  or  crown  revenues ;  they  were 
obliged  to  ask  for  supplies  at  the  hands  of  those  who  had 
them.  Some  manly  nations,  most  especially,  however,  the 
Dutch  and  the  British,  gradually  did  not  only  allow  of  no 
taxation  without  the  consent  of  the  tax-payer  or  his  real  or 
imagined  representative,  but  they  made  frequently  the  grant 
of  money,  on  their  part,  dependent  upon  grants  of  privileges, 
charters,  or  political  freedom  on  the  part  of  the  receiver. 
At  length  the  principle  became  distinctly  acknowledged  and 
solemnly  settled  with  the  English,  that  no  taxation  is  lawful 
except  it  be  granted  by  act  of  parliament.  Other  nations 
have  neglected  this.  "  The  Castilian  commons,  by  neglecting 
to  make  their  money  grants  depend  on  correspondent  conces- 
sions from  the  crown,  relinquished  that  powerful  check  on  its 
operations,  so  beneficially  exerted  in  the  British  parliament, 
but  in  vain  contended  for  even  there,  till  a  much  later  period 
than  that  now  under  consideration."' 

As  the  British  executive  can,  of  course,  do  nothing  without 
money,  and  as  the  money  may  be  refused  by  the  commons, 
the  latter  have  obtained  an  effectual  check  upon  the  former. 
The  same  is  the  case  in  France,  and  all  truly  liberal  states  in 
Europe.  Hence  the  immense  importance  which  the  word 
"  supplies"  has  acquired  within  the  last  century.  The  com- 
mons have  no  right  to  change  ministers  whom  the  monarch 
appoints,  but  if  the  commons  refuse  supplies  the  monarch  must 
change  the  ministry;  otherwise  government  must  stop,  and  a 
revolution  would  follow.  And  thus  it  ought  to  be :  if  there 
be  disagreement,  who  else  but  the  people  shall  decide  virtually 
and  effectually?  Who  else  can  finally  decide?  For  a  history 
of  this  check,  one  of  the  most  interesting  features  of  modern 
civil  history,  I  must  refer  to  the  best  English  and  French  his- 
tories, and  the  history  of  the  various  European  states  in  the 


'  Prescott,  History  of  Ferdinand  and  Isabella,  2d  ed.,  Boston,  1838,  p.  xlix.. 
Introduction. 


350 


THE  STATE. 


middle  ages.  The  second  part  of  this  work  will  offer  an 
opportunity  of  discussing  the  subject  when  a  citizen  ought 
conscientiously  to  vote  against  supplies,  with  the  intention  of 
enribarrassing  the  existing  administration,  so  that  a  change 
may  be  produced. 


CHAPTER     XII. 

Classification  of  Greek  Constitutions  by  Aristotle, — Classification  of  Governments 
according  to  the  Number  of  those  who  hold  the  Supreme  Power. — Polity. 
Meaning  in  which  it  is  used  in  the  present  Work. — Autarchic  and  Hamacratic 
Polities.  —  Autarchy,  Hamarchy. — Absolutism.  —  Democratic  Absolutism. — 
Different  Operation  in  the  Autarchy  and  Hamarchy. — Hamarchy  materially 
republican  in  its  Character. — The  Polity  of  England  is  a  Hamarchy. — The 
Polity  of  the  United  States  likewise. — Hamacratic  Character  of  the  City  of 
Rome. — Hamarchy  rises  with  the  Teutonic  Race. — Anglican  Hamarchy. 

CXXVII,  Aristotle  says  that  the  poHtical  constitutions 
»n  Greece  had  followed  in  this  order :  monarchy,  aristocracy, 
oligarchy,  tyrannis,  democracy.  The  same  great  philosopher 
gives  other  divisions  upon  different  principles,  and  we  find 
mentioned  in  ancient  times,  among  others,  plutocracies,  or 
states  in  which  riches  form  the  foundation  of  supreme  power. 
Aristotle  was  the  first,  I  believe,  who  made  a  distinction  be- 
tween the  state  constitution  and  the  government.  It  is  an 
important  distinction,  not  even  always  properly  kept  in  view 
by  modern  political  writers,  when  they  speak  of  the  different 
"  forms  of  government."  Important  as  these  forms  are,  ac- 
cording to  the  number  of  those  who  hold  the  supreme  power, 
and  although  they  constitute  a  prominent  department  of  the 
science  of  politics,  the  office  of  which  it  is  to  inquire  into  their 
advantages  and  disadvantages  under  certain  given  circum- 
stances, still  the  essence  or  principle  is  more  important  than 
the  form,  A  republic,  as  to  form,  maybe  cruelly  oppressive; 
a  hereditary  monarchy  may  protect  the  individual  and  leave  a 
healthful  action  in  most  directions  to  the  community.  Aris- 
tocracies may  be  nothing  more  than  a  combination  of  despots 
far  more  oppressive  than  absolute  monarchs,  or  the  people 
may  love  the  aristocracy  they  live  under,  as  was  the  case  with 
the  subjects  of  Venice,  when  those  of  their  number  who  lived 
on  the  continent,  voluntarily,  and  at  the  peril  of  losing  their 

35» 


352 


THE  STATE. 


all,  defended  and  saved  the  republic  in  1509,  against  the  pope, 
the  German  emperor,  and  the  kings  of  Spain  and  France, 
united  by  the  league  of  Cambray.  The  noble  Bayard,  who 
fought  against  them,  said  that  the  subjects  of  Venice  are 
faithful  to  their  government  to  an  unsurpassed  degree,  "  for 
never  have  masters  on  earth  been  more  beloved  by  their  in- 
feriors for  the  great  justice  which  they  always  show  them." 
There  was  a  variety  of  governments  around  them,  yet  they 
seem  to  have  had  occasion  to  be  satisfied  even  with  an  aris- 
tocracy, and  a  high-handed  one  too.  It  is  often  asserted, 
with  what  precise  degree  of  truth  I  cannot  say,  that  the  aris- 
tocratic government  of  the  canton  of  Bern  is  very  popular. 

CXXVIII.  For  our  purpose  it  is  necessary  to  direct,  then, 
our  attention  to  a  different  subject  from  that  of  the  individual 
or  body  of  individuals  in  whose  hands  the  supreme  power 
may  rest.  I  shall  'consider  chiefly  of  what  character  the 
power  is,  and  in  what  mode  government  operates.  Let  us 
call  the  latter  the  polity  of»a  state.  I  do  not  believe  that  I  do 
violence  to  the  English  language  if  I  use  the  term  polity  in 
this  more  definite  meaning,  nor  do  I  deviate  too  much  from 
the  sense  of  the  original  word ;  for  -ohzda  signifies,  first,  the 
relation  of  the  free  citizen  to  his  state ;  and  that  this  is  de- 
pendent upon,  and  closely  connected,  in  fact,  in  certain  re- 
spects the  same,  with  the  organic  operation  of  the  state,  will 
appear  immediately.  I  divide,  then,  for  our  purpose,  all  states, 
according  to  their  polity,  into  autarchies  and  hamarchies 
(from  aim,  at  the  same  time,  jointly,  co-operatingly,  and  apx^v^, 
to  rule). 

I  call  autarchy  that  state  in  which  public  power,  whole  and 
entire,  unmitigated  and  unmodified,  rests  somewhere,  be  this 
in  the  hands  of  a  monarch,  or  the  people,  or  an  aristocracy, 
it  matters  not  for  our  division.  Provided  there  be  absolute 
power,  or  absolutism,  a  power  which  dictates  and  executes, 
which  is  direct  and  positive,  we  call  the  polity  an  autarchy. 
As  the  word  autocracy  has  already  its  distinct  meaning, 
namely,  that  of  absolute  monarchy,  I  was  obliged  to  resort  to 


AUTARtHY  AND  HAMARCHY.  353 

another,  which  would  comprehend  the  absolute  monarchy  as 
well  as  absolute  democracy  or  aristocracy.  The  democratic 
autarchy  stands,  therefore,  in  the  same  relation  to  a  democ- 
racy in  general,  as  the  absolute  monarchy  or  autocracy  stands 
to  monarchy  in  general. 

Hamarchy,  on  the  other  hand,  is  that  polity  which  has  an 
organism,  an  organic  life,  if  I  may  say  so,  in  which  a  thousand 
distinct  parts  have  their  independent  action,  yet  are  by  the 
general  organism  united  into  one  whole,  into  one  living  sys- 
tem. Autarchy  acts  by  power  and  force  ;  hamarchy  acts  and 
produces  as  organized  life  does :  in  the  autarchy  laws  are 
made  by  the  power ;  in  the  hamarchy  they  are  rather  gen- 
erated :  in  the  autarchy  the  law  is  absolute,  after  it  has  been 
made;  in  the  hamarchy  the  law  modifies  itself  in  its  applica- 
tion and  operation.  The  political  organism  may  prevent  its 
action  entirely,  not  by  force,  but  simply  because  it  cannot 
operate.  In  the  autarchy  the  law  is  the  positive  will  of 
power;  in  the  hamarchy  it  is  much  more  the  expression  of 
the  whole  after  a  thousand  modifications.  Hamacratic  poli- 
ties rest  materially  on  mutuality  ;  autarchy,  on  direct  power. 
The  principle  of  autarchy  is  sacrifice ;  the  principle  of  ham- 
archy is  compromise.  Blackstone  had  in  mind  what  I  call 
hamarchy  when  he  said,  "  every  branch  of  our  civil  polity 
supports  and  is  supported,  regulates  and  is  regulated,  by  the 
rest."  It  is  not  the  "balance  of  power"  which  makes  the 
hamarchy,  but  the  generation  of  power.  A  hamarchy  cannot 
be  compared  to  a  pyramid,  or  to  concentric  circles,  or  to  a 
clock-work,  but  only  to  the  living  animal  body,  in  which 
numerous  systems  act  and  produce  independently  in  their 
way,  and  yet  all  functions  unite  in  effecting  that  which  is 
called  life.  If  ever  there  was  a  republic  of  action,  it  is  the 
animal  body,  and  it  is  therefore  the  true  picture  of  hamarchy; 
for  from  what  has  been  stated  it  will  be  evident  that  hamarchy 
is  materially  republican,  and  though  the  form  of  government 
may  be  a  monarchy,  that  is,  though  one  individual  may  have 
nominally  the  supreme  power,  though  the  supreme  power 
may  be  called  the  crown,  though  an  individual  may  be  desig- 

23 


354 


THE  STATE. 


nated  by  birth  to  fill  the  place  on  the  throne  that  is  to  be  filled, 
yet  that  which  makes  the  polity  of  that  state  a  hamarchy  is 
republican  in  its  character,  as  I  believe  it  cannot  be  denied 
to  be  the  case  in  England,  nor  do  jealous  royalists  consider 
it  in  any  other  light.  On  the  other  hand,  that  government 
mechanism  which  is  calleJ  significantly,  if  not  classically, 
bureaucracy,  is  decidedly  autarchic  in  its  character. 

It  has  been  a  great  mistake  to  consider  the  law-making 
process  only — which  in  fact  means  the  law-pronouncing — of 
importance;  for  the  process  in  which  laws  are  generated, 
and,  when  pronounced,  their  mode  of  operation,  are  equally 
important.  Autarchies  oppress,  if  persevered  in  and  applied 
to  extensive  territories,  for  the  same  reason  that  so-called 
universal  monarchies  have  a  ruinous  effect.' 

The  dead  weight  of  power  oppresses,  takes  away  from  each 
minor  activity  its  peculiar  and  characteristic  function,  and, 
though  it  may  produce  some  specific  astonishing  effect,  it 
saps  the  life ;  it  may  raise  pyramids,  but  it  cannot  produce 
healthy,  happy  cottages. 

CXXIX.  Hamarchy,  then,  signifies  something  entirely  dif- 
ferent from  the  ancient  synarchy,  which  merely  denoted  a 
government  in  which  the  people  had  a  share  together  with 


»  Ancillon,  Tableau  des  Revolutions  du  SystSme  politique  de  I'Europe,  part.  i. 
tome  i.  p.  68 :  "A  universal  monarchy  would  be  without  doubt  a  great  evil  for 
the  world,  and  the  more  an  empire  approaches  to  it,  the  more  must  the  friend  of 
mankind  wish  that  it  may  stop  in  its  progress.  A  universal  monarchy  would 
necessarily  cause  the  oppression  of  the  various  nations,  and  the  most  ciying  abuse 
of  power  would  be  inseparable  from  the  exercise  of  power;  the  force  of  circum- 
stances would  establish  an  Oriental  despotism  without  limit,  without  measure, 
without  refuge  ;  it  would  prevent  the  development  of  nations,  for  emulation, 
rivalry,  jealousy,  and  mutual  fears  are  the  means  of  perfection  and  the  springs 
of  activity  for  nations  as  well  as  individuals.  At  length  it  would  bring  down 
everything  to  the  same  measure ;  under  the  level  of  uniformity  would  disappear 
this  happy  variety  of  thoughts  and  sentiments,  of  talents  and  tastes,  of  habits  and 
actions,  which  is  at  the  same  time  effect  and  cause  of  the  progress  of  life,  and 
together  with  the  national  existence  would  vanish  the  physiognomy  and  the  indi- 
viduality of  all  nations."  Mr.  Ancillon  was,  at  a  later  period,  minister  of  foreign 
affairs  to  the  king  of  Prussia. 


AUTARCHY  AND  HAMARCHY.  355 

the  rulers  proper.'  Disjointedness,  and  absolute  independence 
of  the  parts,  in  some  respects,  as  the  pashalics  in  Turkey, 
by  no  means  constitute,  as  it  will  have  appeaj-ed,  hamarchy. 
A  united  organism  is  requisite.  The  polity  of  England,  with 
her  independent  judiciary,  independent  courts,  corporations, 
commons,  lords,  king,  etc.,  is  a  hamarchy.  The  various 
United  States,  with  their  counties,  judiciary,  state  legislatures, 
and  congress,  and  their  thousand  semi-official  meetings,  form 
a  hamarchy.  Some  of  the  states,  without  the  American  union, 
would  have  little  of  a  hamacratic  character ;  the  federal  gov- 
ernment, without  the  state  legislatures  and  sovereignties, 
would  probably  soon  lose  its  hamacratic  character. 

CXXX.  The  independence  of  the  parts  can  be  carried  much 
too  far,  as  the  activity  of  certain  organs  or  systems  in  the 
body  can  be  too  intense,  and  disease  must  ensue.  It  is  not 
the  severance  from  the  common  system  of  life  that  constitutes 
the  independence  requisite  to  hamarchy.  The  Turks  were 
before  the  gates  of  Vienna,  diet  after  diet  was  held  in  Ger- 
many, but  no  united  effort  was  made  against  the  fearful  enemy. 
Germans  have  fought  against  Germans,  until  their  country  has 
been  drenched  with  the  blood  of  her  sons  ;  yet  not  on  account 
of  her  hamacratic  character,  but  only  on  account  of  its  being 
a  loosely  united  confederacy.  France,  on  the  other  hand,  has 
for  centuries  systematically  concentrated  all  power,  and  is 
now  only  in  the  process  of  passing  from  autarchy  to  hamar- 
chy, restoring,  as  she  does,  political  life  to  the  various  spheres 
out  of  Paris.  That  there  are  between  the  two  extremes  a 
multitude  of  shades,  is  clear.  A  part  of  a  certain  political 
system  may  be  autarchic,  and  another  have  assumed  more 
of  a  hamacratic  character.  It  depends  upon  the  mode  of 
operation. 

One  of  the  most  striking  proofs  of  the  hamacratic  charac- 


»  [This  word,  so  far  as  I  can  see,  ought  to  denote  colkgiality,  or  joint  rule  of 
several  administrative  officers.  Hamarchy  is  a  compound  unknown  to  the 
Greeks,  wlo  form  almost  no  compounds  with  "|Ua.] 


356 


THE  STATE. 


ter  of  the  English  polity  is  this,  that  her  gigantic  capital, 
much  vaster  and  richer  than  Paris,  though  of  a  country  much 
smaller  and  less  populous  than  France,  has  at  no  period  so 
entirely  absorbed  the  energy  of  the  country,  or  so  absolutely 
influenced  the  distant  parts,  be  it  in  fashion,  social  intercourse, 
language,  literature,  taste,  politics,  or  whatever  else,  as  Paris 
has  influenced  and  in  fact  guided  France,  even  though  the 
idea  of  fashion  is  so  powerful  in  England.  The  word  province, 
in  France  an  expression  which  savors  of  disdain,  has  never 
acquired  this  meaning  in  England.  A  book  is  not  disregarded 
in  England  because  published  in  the  "  province,"  as  it  would 
be  in  France.  Gaining  or  losing  Paris  has  been  gaining  or 
losing  France.     It  will  not  be  always  so  in  future. 

CXXXI.  The  Greeks  had  no  clear  perception  of  hamarchy. 
Government,  with  them,  strongly  inclined  towards  autarchy, 
democratic,  aristocratic,  oligarchic,  or  monarchic,  as  we  shall 
see  in  the  next  chapter.  Yet  if  we  view  ancient  Greece  as  a 
whole,  we  shall  find  that,  as  such,  she  had  a  hamacratic  char- 
acter, and  many  of  the  unrivalled  traits  in  her  glorious  civili- 
zation are  owing  to  this  very  fact.  The  Roman  polity  had 
more  of  a  hamacratic  character,  yet  only  in  the  city  itself, 
and  co^ld  never  reach  a  decided  character  of  this  sort  in  the 
higher  political  spheres,  on  account  of  the  whole  view  the 
ancients  took  of  the  state ;  though  the  Romans  left  a  large 
sphere  of  free  political  action  to  the  cities  and  provinces. 
The  true  germs  of  hamacratic  polity  must  be  sought  for  in 
the  conquests  of  the  Teutonic  races,  and  the  consequent  feu- 
dal system,  which  indeed  fluctuated  long  between  barbarous 
anarchy  or  revolting  lawlessness,  and  an  auspicious  hamarchy. 
When  the  cities  with  their  charters,  the  provinces  with  their 
privileges,  etc.,  etc.,  were  added,  the  idea  of  independent  action 
became  clearer.  In  England,  again,  a  sufficient  union  of  the 
estates  took  place,  not  to  permit  anarchy ;  yet  by  happily 
uniting  into  two  houses,  and  not  one,  or  not  remaining  divided 
into  three  parts,  one  of  the  great  foundations  of  her  hama- 
cratic polity  was  laid.     The  counties,  etc.,  retained  their  pro- 


AUTARCHY  AND  HAMARCHY.  357 

portionate  independence,  so  the  colonies,  so  almost  everything 
connected  with  England,  and  thus  she  has  produced  what  we 
may  well  call  the  peculiar  Anglican  hamarchy,  which  has 
transplanted  political  life  into  many  distant  regions,  and  from 
which  the  seeds  of  constitutional  liberty  have  been  carried 
over  the  continent  of  Europe.  It  is  mainly  the  substantial 
principles  of  Anglican  hamarchy  for  which  continental  Europe 
is  now  striving  and  struggling. 


CHAPTER     XIII. 

Political  Spirit  of  the  Ancients. — The  Ancients  had  not  what  we  call  Law  of 
Nature. — Essential  Difference  between  the  View  of  the  State  taken  by  the 
Ancients  and  the  Moderns. — Greek  Meaning  of  Liberty:  absolute  Equality, 
even  disavowing  the  Inequality  of  Talent  and  Virtue. — Protection  of  the  In- 
dividual, first  object  of  the  Moderns;  the  Existence  of  the  State,  of  the  An- 
cients :  hence  high  Importance  of  Judicial  Forms  with  the  Moderns. — He  who 
has  Supreme  Power,  be  it  One,  Many,  or  All,  must  not  sit  in  Judgment. — 
Greek  Laws  often  very  oppressive  to  the  Individual. — The  most  private  Affairs 
frequently  interfered  with.  —  Socrates'  View  of  the  State — Lavalette,  Hugo 
Grotius,  and  Lord  John  Russell,  on  the  other  hand. — Ostracism. — Causes  of 
the  powerful  Change  in  the  View  of  the  State.  —  Christianity.  —  Conquest 
of  the  Roman  Empire  by  Teutonic  Tribes.  —  Feudalism.  —  Increased  Extent 
of  States.  —  Printing.  —  Increased  Wants  of  Government.  —  Taxation.  —  Rise 
of  the  Third  Estate. — Increased  Industry.— Discoveiy  of  America. 

CXXXII.  The  civilization  of  the  ancient  Greeks  and  Ro- 
mans was  in  many  respects  higher  than  that  of  the  moderns; 
in  others,  the  latter  would  have  the  advantage  in  the  com- 
parison ;  and  among  those  things  in  which  the  most  civilized 
modern  nations  excel  the  two  gifted  and  noble  ones  of 
antiquity,  or  perhaps  that  subject  in  which  we  most  signally 
and  characteristically  surpass  them,  is  public  law,  or  that 
branch  of  law  which  defines  the  relation  of  the  individual  to 
the  state.  With  the  ancients,  all  that  an  individual  was,  he 
was  as  a  member  of  the  state.  The  moderns,  on  the  other 
hand,  acknowledge  the  humanity  in  the  individual,  besides  his 
civility  or  citizenship.  We  speak  of  individual,  of  primordial, 
rights ;  we  consider  the  protection  of  the  individual  as  one 
of  the  chief  subjects  of  the  whole  science  of  politics.  The 
TzoXcTur^  ^-iffTTJ/jLTj,  ot  poHtlcal  scicncc,  of  the  ancients,  does  not 
occupy  itself  with  the  rights  of  the  individual ;  the  ancient 
science  of  politics  is  what  we  would  term  the  art  of  govern- 
ment, that  is,  "  the  art  of  regulating  the  state,  and  the  means 
358 


POLITICS   OF  THE  ANCIENTS. 


359 


of  preserving  and  directing  it."^  The  ancients  start  with  the 
state,  and  deduce  every  relation  of  the  individual  to  it  from 
this  first  position ;  the  moderns  acknowledge  that  the  state, 
however  important  and  indispensable  to  mankind,  however 
natural,  and  though  of  absolute  necessity,  still  is  but  a  means 
to  obtain  certain  objects  both  for  the  individual,  and  society 
collectively,  in  which  the  individual  is,  by  his  nature,  bound 
to  live.  The  ancients  have  not  that  which  the  moderns  un- 
derstand by  jus  naturale,  that  is,  the  law  which  flows  from  the 
individual  rights  of  man  as  man,  and  decides  what  the  objects 
are  which  justice  demands  for  every  one  and  which  the  state 
is  bound  to  promote  and  protect.  On  what  supreme  power 
rests,  what  the  extent  and  limitation  of  supreme  power  ought 
to  be,  according  to  the  fundamental  idea  of  the  state, — these 
questions  have  never  occupied  the  ancient  votaries  of  political 
science. 

Aristotle,^  Plato,  Cicero,  do  not  begin  with  this  question. 
Their  works  are  mainly  occupied  with  the  discussion  of  the 
question,  Who  shall  govern  ?  The  safety  of  the  state  is  their 
principal  problem ;  the  safety  of  the  individual  is  one  of  our 
greatest.  No  ancient,  therefore,  doubted  the  extent  of  supreme 
power.  If  the  people  had  it,  no  one  ever  hesitated  in  allowing 
absolute  power  over  every  one  and  everything.  If  it  passed 
from  the  people  to  a  few,  or  was  usurped  by  one,  they  con- 
sidered, in  many  cases,  the  acquisition  of  power  unlawful,  but 


»  Heeren,  Sketch  of  the  Political  History  of  Greece,  translated,  Oxford,  1834, 
p.  140. 

2  But  even  here  we  find  that  the  gigantic  mind  of  Aristotle  had  a  glimmering 
of  the  truth  far  in  advance  of  his  times,  when  in  his  Politics,  iii.  7,  and  Ethics, 
viii.  12,  he  finds  the  essential  difference  of  states  not  in  the  number  of  rulers, 
but  in  the  object  of  government,  whether  this  be  the  welfare  of  the  whole,  in 
which  monarchy,  aristocracy,  and  polity  are  to  be  classed,  or  the  interest  of  a 
few,  in  which  he  classes  tyrannis,  oligarchy,  and  democracy.  Democracy  he 
distinguishes  from  polity  by  this,  that  in  the  latter  the  most  numerous  class  of 
citizens,  the  indigent,  vote  according  to  their  separate  interest,  while  in  the  abso- 
lute democracy,  as  we  would  call  it  now,  the  great  number  must  always  outvote 
the  smaller  number,  and  are  led  by  a  few.  The  moderns  know  a  third  —  the 
represer  tative  principle. 


360  THE  STATE. 

never  doubted  its  unlimited  extent  Hence  in  Greece  and 
Rome  the  apparently  inconsistent,  yet  in  reality  perfectly 
natural,  sudden  transitions  from  entirely  or  partially  popular 
governments  to  absolute  monarchies,  while  with  the  modern 
European  states,  even  in  the  most  absolute  monarchy,  there 
exists  a  certain  acknowledgment  of  a  public  law,  of  individual 
rights,  of  the  idea  that  the  state,  after  all,  is  for  the  protection 
of  the  individual,  however  ill  conceived  the  means  to  obtain 
this  object  may  be. 

The  idea  that  the  Roman  people  gave  to  themselves,  or  had 
a  right  to  give  to  themselves,  their  emperors,  was  never  aban- 
doned entirely,  though  the  soldiery  arrogated  their  election. 
"We  may  safely  infer  from  this  that  the  emperors  themselves 
recognized  that  the  Roman  people  had  not  deprived  them- 
selves of  the  right  to  give  themselves  their  masters."  (Bar- 
beyrac,  note  on  Grot,  p.  441.)  Or  if  the  reader  does  not  agree 
with  me  on  this  point,  which  cannot  be  discussed  here,  it  is 
manifest,  at  least  that  no  legitimacy  either  by  descent  or 
divine  right,  or  founded  on  a  constitution,  was  acknowledged. 
Yet  the  moment  that  the  emperor  was  established,  no  one 
doubted  his  right  to  absolute  supreme  power,  with  whatever 
violence  it  was  used. 

CXXXIII.  Liberty,  with  the  ancients,  consisted  materially 
in  the  degree  of  participation  in  government,  "  where  all  are 
in  turn  the  ruled  and  the  rulers."  Liberty,  with  the  moderns, 
consists  less  in  the  forms  of  authority,  which  are  with  them 
but  means  to  obtain  the  protection  of  the  individual  and  the 
undisturbed  action  of  society  in  its  minor  and  larger  circles. 
'EXeu6spia,  indeed,  signifies,  with  the  Greek  political  writers, 
equality,  that  is,  absolute  equality,  and  Icozriq,  equality,  as  well 
as  IXeuOspia,  is  a  term  actually  used  for  democracy,  (Plato, 
Gorg.,  39.)  It  is,  therefore,  perfectly  consistent  that  the  an- 
cients (see  Arist,  Pol.)  aim  at  perfect  liberty  in  perfect  equality, 
not  even  allowing  for  the  difference  in  talent  and  virtue  ;  so 
that  they  give  the  TtdXoq,  the  lot,  as  the  true  characteristic 
of  democracy.      This  is  striking,  and  has  a  deep  meaning. 


LIBERTY  OF   THE  ANCIENTS.  361 

They  were  naturally  and  consistently  led  to  the  lot ;  in  seek- 
ing liberty,  that  is,  the  highest  enjoyment  and  manifestation 
of  human  reason  and  will,  they  were  led  to  their  annihilation, 
to  the  lot,  that  is,  chance.  Many  magistrates,  the  senate  of 
five  hundred,  and  others  were  chosen  at  Athens  by  lot'  Hence 
again  the  phenomenon,  that  many  ancient  philosophers  dis- 
cussing the  question  of  the  best  government  make  the  state 
absorb  the  individual  (Plato,  in  his  Republic),  and  take  the 
Lacedaemonian  constitution  of  Lycurgus  as  a  model.  The 
moderns,  on  the  other  hand,  unite  the  two  objects  of  discus- 
sion, liberty  and  the  safety  of  the  state,  and  can  do  so.  The 
great  problem  with  them  is,  how  the  utmost  possible  protec- 
tion of  the  individual,  as  an  entire  man,  can  be  best  united 
with  the  demands  which  society  makes  as  such.  The  diffi- 
culty of  politics  and  ruling,  therefore,  has  infinitely  increased, 
and  is  daily  increasing ;  because  the  individual  makes  greater 
claims  with  each  advance  in  civilization.  Hermodorus  in 
Ephesus  was  banished  because  he  was  the  best.     The  decree 

of  the  people  was,  r^jxiiov  /irjde  elc  o^rjcffTo^  k'ffroj,  it  di  tj?  toiuuto^, 
aXXrj  T£  y.ai  /xsr'  aXXujv.^ 

The  ancients  do  not  discuss  tlie  rights  of  the  individual :  as 
opposed  to  the  state,  he  has  none.  Hence  the  immense  im- 
portance which  the  judiciary  has  acquired  in  modern  times, 


» I  must  refer  here  to  Aristotle's  Politics  in  general.  Herodotus,  3,  80,  gives 
the  essential  character  of  ancient  democracy.  It  is  isonomy  and  lot.  See  also 
Herodotus,  5,  78,  where  democracy  is  commended.  On  isonomy,  or  equal  right 
to  power  and  liberty  of  speech  free  to  all,  see  W.  Wachsmuth,  Hellenic  Archte- 
ology  (in  German),  vol.  i.  part  ii.  page  22;  on  democracy  in  general,  ibid.,  p.  18 
et  se.].  Of  great  importance  is  likewise  Boeckh,  Economy  of  Athens,  translated 
frcm  the  German — a  standard  book. 

[A  few  years  before  Dionysius  the  Elder  became  tyrant  of  Syracuse,  the  lot 
came  in  with  the  new  laws  and  constitution  of  Diodes.  Diod.,  viii.  23t  34- 
Dionysius,  according  to  Plut.  Apophth.  reg.  p.  175  E,  drew  the  lot  to  address 
the  people,  and  then  was  chosen  general,  which  paved  the  way  for  his  tyranny.] 

=  [This  saying  —  not  decree  —  is  recorded  in  Diog.  Laert.,  ix.  2,  and  is  thus 
translated  by  Cicero,  Tusc.  Disp.,  v.  36,  105  :  "Nemo  de  nobis  unus  excellat ;  sin 
quis  extiterit,  alio  loco,  et  apud  alios  sit."  The  philosopher  Heraclitus,  the  friend 
of  this  best  citizen,  said  that  the  grown-up  citizens  ought  all  to  be  killed  for 
banishirvg  him.] 


362  THE  STATE. 

the  certainty  of  the  law  as  a  general  rule,  and  the  minute 
attention  paid  to  the  fixed  forms  of  its  administration,  so 
that  it  is  considered  of  the  highest  consequence  that  no 
one  shall  be  judged  but  by  that  tribunal  before  which  he  be- 
longs by  law,  or  his  natural  judges,  a  principle  held  so  impor- 
tant that  it  is  inserted  in  the  modern  constitutions.  The  court 
of  cassation  (or  quashing),  the  highest  court  of  France,  has 
nothing  to  do  but  to  try  whether  in  a  trial  any  illegality  of 
judicial  form  or  error  of  law  has  taken  place;  and  in  the 
French  charter,  as  amended  in  1830,  we  read,  "No  one  can 
be  deprived  of  his  natural  judges."  .  .  .  "There  cannot,  in 
consequence,  be  extraordinary  committees  and  tribunals  cre- 
ated, under  whatever  title  or  denomination  this  might  be." 
French  Charter,  53,  54.' 

Indeed,  what  are  all  modern  constitutions  but  fundamental 
laws,  by  which  the  supreme  power  is  to  be  restricted  to 
proper  limits,  and  the  individual  rights  of  the  citizen  to  be 
secured  ?  The  judicial  formalities  of  the  Greeks,  however, 
were  uncertain.  The  people  stepped  in,  according  to  their 
pleasure,  as  in  monarchical  despotisms  the  despot  does. 
When  the  Athenians  proceeded  against  the  commanders  after 
the  battle  at  Arginusse,  the  whole  legal  procedure  was 
changed  for  this  special  case.  According  to  the  law  of 
Canonus,  the  case  of  every  commander  should  have  been 
voted  upon  separately ;  but  in  this  trial  the  people  voted  on 
all  commanders  jointly.  Some  citizens  remarked  this  dis- 
crepancy, but  the  crowd  exclaimed,  "  It  would  be  monstrous 
if  the  people  could  not  do  what  they  like,"  ^ — precisely  what 
Louis  XIV.  would  have  exclaimed,  had  he  chosen  to  judge  a 


'  The  charter  of  1814,  promulgated  by  Louis  XVIII.  when  he  ascended  the 
throne,  read  thus  :  "  In  consequence,  there  cannot  be  created  extraordinary  com- 
mittees and  tribunals.  The  jurisdictions  prevotales  (extraordinary  courts  with 
military  officers  among  the  judges:  see  articles  Prevot,  Cotirs  Prevotales,  in  vol. 
X.  of  the  Encyclopaedia  Americana),  if  their  re-establishment  should  be  found 
necessary,  are  not  comprised  under  this  denomination." 

=»  Xenophon,  Grec.  Hist.,  i.  7,  12.  In  the  speech  against  Nesera,  ascribed  to 
Demosthenes,  is  a  like  remark,  that  the  people  may  decree  against  the  law. 


ANCIENT  AND  MOD  ERA    LIBERTY.  t^^t, 

case  in  his  palace,  and  the  parHament  of  Paris  should  have 
attempted  to  interfere.  It  was  impossible,  according  to  the 
course  of  political  civilization,  that  antiquity  should  have  ele- 
vated itself  to  the  great  idea  of  an  independent  judiciary ;  nor 
have  the  moderns  discovered  the  truth  by  abstract  reasoning 
or  natural  law.  We  have  been  led  to  it  by  the  peculiar  political 
development  of  the  European  race  through  the  lawless  times 
of  feudalism,  and  the  elevated  views  of  the  moral  character  of 
man,  raised  by  Christianity  and  the  progress  of  civilization, 
closely  connected  with  increased  population.  Having,  how- 
ever, arrived  at  the  idea,  we  cannot  sufficiently  value  it ;  and 
every  flatterer  of  the  crowd,  when  he  wishes  to  persuade 
them  that  the  people,  being  the  masters,  can  do  what  they 
like,  ought  fearfully  to  pause  and  well  weigh  this  mighty 
subject.  And  after  having  reached  the  idea  it  took  a  long 
time  to  make  it  a  reality  by  defenses  of  it  against  the  means 
which  royal  power  had  of  controlling  the  judges.  None  on 
earth,  neither  people  nor  monarch,  neither  all,  many,  few,  or 
one,  have  a  right  to  do  what  they  like.  None,  not  even  unani- 
mous millions,  have  a  right  to  do  what  is  unjust.  Absolute 
power  is  not  for  frail  mortal  man :  it  ruins  those  subjected  to 
it,  and  blasts  the  hand  that  wields  it. 

CXXXIV.  The  idea  that  the  state  is  everything  and  the 
individual  has  its  value  only  inasmuch  as  he  is  a  member  of 
the  state,  had  of  course  a  very  powerful  influence  upon  the 
security  of  private  property  and  upon  taxation.  Everything 
could  be  demanded  for  the  state,  and  special  taxation,  like 
that  peculiar  regulation  in  Athens,  called  in  Greek  ht-oupyia, 
by  which  single  citizens  were  burdened  with  certain  services 
or  expenses,  were  but  a  natural  consequence.  It  was  not  re- 
pulsive to  the  feeling  of  justice  in  an  Athenian  to  see  a  rich 
individual  charged  according  to  law  with  the  expensive  bur- 
den of  defraying  all  the  expenses  of  the  choruses  in  the  dra- 
matic performances  called  choregia,  or  the  getting  up  of  a 
public  dinner  of  a  tribe.     (Boeckh,  iii.  21,  vol.  i.) 

We  may  be  somewhat  reconciled  to  these  special  taxations 


364  ^-^^  STATE. 

when  we  consider  that  nearly  all  festivals  and  amusements  of 
the  Greeks  had  a  religious  character ;  that,  according  to  their 
views,  the  tutelary  deity  would  have  been  offended  at  the 
omission  of  these  festivals,  and,  consequently,  their  due  cele- 
bration was  of  public  importance.'  Still,  the  special  charges 
must  be  explained  on  the  ground  I  have  mentioned. 

The  ancient  political  philosophers  do  not  omit  to  treat  of 
education;  on  the  contrary,  they  pay  much  attention  to  it, 
but  never  in  any  other  light  than  that  of  the  use  to  be  derived 
for  the  state — its  preservation.  They  know  of  no  other  ob- 
ject of  education  than  the  political  one,  to  bring  up  indi- 
viduals fit  to  perpetuate  the  state ;  it  is  their  sole  object.  The 
highest  object  of  education  with  the  moderns  is,  as  all  sound 
works  of  education  state,  the  development  of  man,  the  culti- 
vation of  all  his  powers,  and  suppression  of  evil  in  him,  the 
development  of  all  that  in  each  individual  which  he  was  cre- 
ated capable  of  being ;  in  short,  the  very  highest  object  of 
education  is  the  fullest  and  purest  possible  development  of 
the  individuality  imprinted  by  the  Maker  upon  each  separate 
human  being ;  to  bring  forth  the  genuine  individual  man  in 
his  shape  and  character,  removing  all  foreign,  accidental,  ob- 
noxious adhesion,  and  thus,  by  raising  true  men,  to  raise  true 
citizens  for  the  state  and  prepare  man  for  his  final  destiny. 

There  was  no  subject  with  which  the  state  could  not  inter- 
fere in  ancient  times  ;  for  the  principle  was,  where  the  people 
are  the  rulers  and  the  ruled,  they  cannot  harm  themselves^a 
principle  not  so  wrong  in  ancient  times  as  it  is,  as  has  been 
previously  shown,  in  modern.  The  ancient  politician  saw 
chiefly  but  the  state;  the  people,  therefore,  necessarily  ap- 
peared to  him  as  one  mass.  In  modern  times,  when  indi- 
vidual liberty  is  so  important,  we  care  little  about  the  question 
whether  the  people   can  harm   themselves,  while  we  know 


»  "  We  need  not  therefore  be  astonished  when  we  hear  that  a  city  could  be 
very  seriously  embarrassed  by  the  want  of  sufficient  means  to  celebrate  its  fes- 
tivals with  due  solemnity."  Heeren,  Sketch  of  Political  History  of  Ancient 
Greece,  p.  172. 


RESTRAINT  IN  ANCIENT  STA  TES.  365 

that  the  majority  may  harm  the  minority ;  the  number,  the 
individual. 

In  Crete  all  the  youths  who  were  annually  dismissed  out  of 
an  Agele  (division  of  youth)  were  required  to  be  married  at  the 
same  time  (Strabo,  x.  4,  20);  to  remain  unmarried  was  punished 
in  many  Greek  states.  (Pollux,  iii.  48  ;  viii.  40.)  Marriages 
with  women  not  of  sufficient  size  were  punished  in  Sparta. 
Thus,  king  Archidamus  is  said  to  have  been  fined  for  having 
taken  too  small  a  wife.  (Plutarch,  in  Agesilaus,  c.  2.)  What 
subject  was  not  restricted  by  law  in  Sparta  ?  We  read  that 
one  who  preferred  a  rich  to  an  honest  but  poor  lover,  and 
one  who  did  not  love  at  all,  were  punished,  (^lian,  iii..  Van 
Hist,  10.)  A  youth  in  Sparta  is  said  to  have  been  punished 
for  rapaciousness  because  he  bought  land  for  too  low  a 
price.  (yElian,  u.  s.,  xiv.  44.)  Common  trades  were  not  per- 
mitted to  the  Lacedaemonian  citizen  (Xenophon,  Laced.  State, 
vii.  2),  which  was  the  case  in  many  other  states.  A  story 
(Plut.,  Inst.  Lacon.,  No.  17)  makes  Terpander  in  the  seventh 
century  B.C.  to  have  had  his  lyre  snatched  from*  him  by  an 
ephorus  at  Sparta,  who  cut  one  of  the  eight  strings  off,  and 
long  after,  another  ephorus  (about  400  years  B.C.)  cut  off  four 
of  the  eleven  strings  from  the  lyre  of  the  great  musician 
Timotheus,  as  tending  to  corrupt  music  and  morals.  Pausa- 
nias  saw  the  lyre  hanging  in  the  Skias  at  Sparta.  The  same 
story  is  told  of  Phrynis.  (See  Plut.,  Agis.,  loi  ;  Pausanias, 
iii.  12,  8  ;  with  many  other  instances.') 

I  do  not  assert  that  laws  equally  interfering  with  private 
concerns  have  not  been  passed  in  modern  times ;  we  have 
only  to  look  at  some  enacted  during  the  French  revolution. 
Catharine  of  Russia  did  not  hesitate  to  interfere  with  private 
rights.  There  are  certain  laws  in  Prussia  and  Austria  founded 
entirely  on  the  idea  that  the  state  must  direct  all  things,  that 
nothing  of  importance  can  take  care  of  itself     According  to 


»  I  refer  to  F.  W.  Tittmann,  Exhibition  of  the  Political  Constitutions  of  Greece, 
in  German,  Leipsic,  1822,  especially  to  the  first  book.  The  reader  will  find  there 
a  careful  and  judicious  compilation  of  the  most  important  passages. 


366  THE  STATE. 

the  newspapers,  a  late  Prussian  decree  prohibits  the  quoting 
of  the  price  of  foreign  stocks,  to  prevent  individuals  being 
seduced  into  ruinous  stock-jobbing.  But  we  do  not  lay  it 
down  as  a  rule  that  the  state  is  everything,  and  therefore  has 
a  natural  right  to  guide  and  claim  everything;  at  any  rate, 
this  is  not  done  by  those  modern  nations  who  are  politically 
farthest  advanced,  and  where  this  interference  takes  place  it 
is  done  under  the  pretence  of,  or  really  for  the  benefit  of,  the 
individual.  Compare  the  freest  modern  states  with  the  freest 
ancient. 

It  was,  therefore,  consistent  with  the  ancient  views  of  the 
state,  that  Socrates  declined  availing  himself  of  the  oppor- 
tunity of  escape  offered  by  his  faithful  disciples.  He  answered, 
that  the  state  had  ordered  his  death,  and,  though  wrongly,  he 
had  no  right  to  withdraw  himself  from  the  law.  It  would  be 
different  had  he  put  it  on  the  ground  that,  in  order  to  prepare 
his  flight,  his  friends  had  been  obliged  to  bribe  the  jailer,  and 
that  he  would  not  participate  in  an  act  wrong  in  itself  He 
does  not  seem  to  have  put  it  on  this  ground  of  ethical  deli- 
cacy, but  simply  on  a  politico-ethical  ground.  According  to 
our  views,  all  mutuality  ceases  as  soon  as  the  law  demands 
my  innocent  life,  which  it  is  one  of  its  main  objects  to  protect. 
I  cannot  be  held  voluntarily  to  obey  that  law  which  seeks  my 
innocent  life  and  ceases  to  perform  the  first  of  all  objects  of 
the  state,  without  which  the  others  cannot  be  imagined.  A 
martyr  may  prefer  to  die,  in  order  to  awaken  a  slumbering 
people,  or  for  some  extra-political  reason;  but  no  one  will 
pretend  to  say  that  a  Socrates,  in  our  times,  would  do  wrong 
to  escape.  On  the  contrary,  without  any  other  consideration, 
he  would  do  wrong,  in  my  opinion,  not  to  escape,  however 
deeply  touching  to  every  true  heart  the  calm  refusal  of  the 
spotless  and  noble  Socrates  must  ever  be. 

Can  General  Lavalette,  according  to  the  strictest  code  of 
morals,  be  reproached  for  having  accepted  his  deliverance  at 
the  hands  of  his  devoted,  intrepid,  and  ingenious  wife  ?  (See 
his  Memoirs.)  Did  Hugo  Grotius  fail  in  the  strictest  duty  of 
a  citizen  because  he  allowed  himself  to  be  carried  in  an  old 


SLA  VISHNESS  NOT  LOYAL  TV.  367 

box,  by  his  wife  and  maid-servant,  out  of  the  prison  where 
Maurice  unjustly  kept  him  ?  For  whatever  reasons  Lord  Wil- 
h"am  Russell  declined  to  exchange  clothes  with  Lord  Caven- 
dish and  to  flee  from  prison,  does  not  every  one  see  at  once 
how  entirely  out  of  place,  with  him,  a  tender  regard  to  supple 
or  perjured  menials,  and  a  king  without  faith  or  honor,  would 
have  been  ?  Or,  when  Catholics  and  Protestants  burnt  one 
another,  should  not  an  imprisoned  man,  destined  for  the  rack 
and  the  stake,  have  seized  upon  an  opportunity  of  escape? 
Declining  it  merely  on  the  ground  of  its  unlawfulness  would 
cither  be  absurd,  or  a  seeking  of  martyrdom  very  doubtful  in 
its  moral  character;^  for  the  destined  victim  himself  ought  to 
prevent,  as  much  as  in  him  lies,  the  committing  of  such  crimes 
in  others,  because  the  more  crimes  of  the  sort  have  been  com- 
mitted^ the  more  difficult  it  becomes  to  return  to  a  state  of 
peace.  There  are  many  cases,  even  in  common,  even  domes- 
tic life,  in  which  there  is  greater  love  shown  in  avoiding  than 
even  in  meekly  suffering,  which  not  unfrequently  is  allied  with 
lurking  vanity. 

Suppose  false  witnesses  have  brought  a  sentence  of  death 
upon  me ;  ought  I  not,  in  mercy  to  my  judges,  to  escape  if  I 
can  ?  Would  they  not  thank  me  for  it,  if,  at  a  later  period,  I 
could  prove  my  innocence  ?  And  what  else  is  persecuting 
fanaticism  but  a  false  witness  ?  Let  me  not  be  misunderstood. 
I  am  not  obliged  at  all  events  to  escape.  If  death  is  offered 
me  thus,  I  may  say,  "  So  be  it;  I  am  ready  to  seal  my  cause 
with  my  blood."  I  simply  speak  of  the  jural  point  in  the 
matter,  and  I  would  add  that  abject  slavishness  is  a  hideous 
counterfeit  of  manly  loyalty.  When  Stubbe,  a  Puritan  law- 
yer, for  having  written  a  pamphlet  against  the  intended  mar- 
riage of  Queen  Elizabeth,  had  his  right  hand  cut  off,  he  waved 
his  hat  with  his  left,  and  exclaimed,  "  Long  live  the  queen 
Elizabeth  !"  and  with  it  wrote,  afterwards,  against  the  Catho- 
lics for  Lord  Burleigh.  He  was  either  a  man  of  most  un- 
common elevation  of  mind,  or  the  very  meanest  of  slaves. 


['  Comp.  Matt.  x.  23.] 


368  THE  STATE. 

CXXXV.  Connected  with  the  ancient  view  of  the  state 
and  of  liberty  were  'the  institutions  of  ostracism  at  Athens, 
Argos,  Megara,  and  Miletus,  and  of  petalism  at  Syracuse.  It 
has  been  seen  that  liberty  and  equality,  equality  and  equal 
participation  in  government,  were,  with  the  ancients,  but  dif- 
ferent terms  for  nearly  or  entirely  the  same  things.  They 
soon  felt  that  not  only  ambition  and  actual  political  power 
were  dangerous  to  this  equality,  which,  according  to  them, 
was  the  essence  of  liberty,  but  also  distinction  on  other  ac- 
counts, for  instance,  suavity,  virtue,  services  performed  for  the 
state.  Have  we  not  instances  in  modern  times  of  men  be- 
coming highly  dangerous  on  account  of  their  popularity, 
however  well  deserving  they  may  have  been  originally?  Yet, 
with  our  representative  system  and  more  extensive  states,  the 
danger  is  not  quite  so  great,  though  great  it  always  will  re- 
main in  republics.  "  It  was  not  considered  unjust  to  take 
from  any  one,  by  a  temporary  banishment  from  the  city,  if  it 
was  feared  that  he  might  become  dangerous  to  this  freedom, 
the  power  of  doing  injury."  (Heeren,  Pol.  Hist,  of  Greece,  p. 
155.)  Niebuhr,  in  his  History  of  Rome,  vol.  ii.  p.  454,  Amer. 
edit.,  speaking  of  Manlius,  says,  "  Thus,  whether  guilty  or 
innocent,  he  became  an  extremely  dangerous  person,  through 
a  misfortune  for  which  there  was  no  cure;  and  matters  could 
not  fail  to  grow  worse  and  worse.  This  knot  might  have 
been  solved  by  ostracism." 

Ostracism  was  materially  a  political,  and  not  a  judicial,  in- 
stitution. The  exostracized  citizen  was  not  punished,  his  for- 
tune not  confiscated,  as  was  the  effect  of  actual  sentences  of 
banishment  for  crimes ;  no  dishonor  was  attached  to  it.  On 
the  contrary,  when  it  became  dishonorable,  because  a  despi- 
cable man  of  the  name  of  Hyperbolus  had  been  banished  by 
this  process,  the  institution  fell  into  disrepute  and  was  con- 
sidered as  disgraced.  Bani.shment  by  ostracism  was  no  sen- 
tence, because  there  was  no  accusation ;  and,  what  is  more 
remarkable,  at  stated  periods,  it  is  said  at  the  sixth  prytany 
of  the  year,  the  people  were  called  to  vote  whether  there  was 
occasion  to  resort  to  ostracism.     (Comp.  K.  F.  Hermann,  Gr. 


PUNISHMENTS  OF  THE  GREEKS. 


369 


Staatsalterth.,  §  130.)  There  was  no  necessary  ill  feeling  to- 
wards the  banished,  connected  with  ostracism.  "  Nothing," 
says  Heeren  (ut  supra,  p.  155),  "  can  be  more  jealous  than  the 
love  of  liberty  ;  and,  unfortunately  for  mankind,  experience 
shows  too  clearly  that  it  has  reason  to  be  so." ' 

The  excessive  punishments  of  the  Greeks  ought  likewise  to 
be  mentioned  here.  It  is  a  principle  in  modern  political  law 
that  each  punishment  ought  to  have  its  justification  in  its 
proportion  to  the  offence.  The  absolute  despot  sees  nothing 
in  the  crime  so  punishable  as  the  offence,  or  the  daring  against 
his  law.  So  did  the  Greeks  know  little  of  any  gradation  of 
punishment  to  be  applied  to  an  offender  against  the  state. 
Their  fines  were  excessive :  confiscation  of  all  property  was 
frequent,  and  in  many  cases  connected  with  death,  (Boeckh, 
Economy  of  Athens,  Book  iii.  14,  and  iii,  12.)  He  who  should 
propose  to  execute  the  claims  upon  Salamis  against  Megara, 
at  the  time  of  Solon  (Plutarch,  in  Solon,  c.  8  ;  Justin,  ii.  7,  and 
others),  or  should  use  the  money  destined  for  the  poor  with 
regard  to  the  theatre  {0ewpua)  for  any  other  purpose  (Libanius, 
arg.  to  Demosthenes,  Olynth.  i.),  or  who  should  accept  of  a 
public  office  while  he  owed  money  to  the  people  (Demosth. 
adv.  Leptines,  §  156;  adv.  Midias,  §  182),  or,  if  an  archon,  was 
intoxicated  (according  to  the  laws  of  Solon,  in  Diog.  Laert.,  i. 
57) — for  all  these  offences,  and  many  more,  the  punishment 
was  death.  Draco  punished  even  indolence  with  death.  I  am 
not"  disposed  to  ascribe  this  severity  simply  to  the  fact  that 
democracy  was  absolute  according  to  the  ancients;  for  all  early 
punishments  are  severe,  because  imprisonment  is  little  known, 
and  it  lasts  a  long  time  before  men  find  out  that  the  severity  of 
punishment  does  not  constitute  its  efficaciousness.  Still,  no  one 
will  deny  that  these  excessive  punishments  show  likewise  the 
absence  of  a  proper  acknowledgment  of  rights  in  the  individual. 

CXXXVI.  So  powerful  and  thorough,  so  overwhelming 
and  essential  a  change  in  some  of  the  most  elementary  views 


«  Tittmann,  ut  supra,  p.  341,  et  seq.,  gives  a  proper  representation  of  this  pecu- 
liar institution. 

24 


370  THE  STATE. 

of  the  civilized  nations  has  been  produced  by  various  causes 
of  vast  extent,  of  which  I  shall  be  able  to  touch  briefly  on  a 
few  only. 

Among  the  most  active  causes  which  wrought  this  great 
change  in  European  civilization,  I  conceive  to  be  these : 

Christianity. 

The  conquest  of  the  Roman  empire  by  fresh  tribes,  which 
came  from  the  north,  and,  being  rude,  with  a  keen  feeling  of 
individual  independence  and  endowed  with  high  capabilities, 
caused  the  system  of  feudalism  to  spring  up. 

The  increased  extent  of  states  and  denseness  of  population, 
not  only  of  cities,  but  of  the  countries  at  large. 

Printing. 

The  increased  wants  of  governments,  the  consequent  in- 
creased value  of  money  for  them,  the  consequent  increased 
importance  of  the  tax-payer,  the  consequent  increased  im- 
portance of  industry.     Union  of  science  and  industry. 

Discovery  of  America. 

CXXXVII.  I.  Christianity.  It  may  sound  surprising  that 
that  religion,  the  founder  of  which  did  not  only  declare  that 
his  kingdom  was  not  of  this  world,  but  who,  it  seems,  care- 
fully avoided  any  discussion  which  might  lead  to  political 
subjects,'  should  nevertheless  have  had  so  powerful  an  effect 


»  Christ  answered  the  Pharisees,  who  had  asked,  "  Is  it  lawful  to  give  tribute 
unto  Cresar,  or  not  ?"  perceiving  "their  wickedness,"  in  seeking  to  involve  him 
in  political  discussions  on  so  delicate  a  subject  in  the  then  state  of  Palestine, 
"  Show  me  the  tribute-money,"  and  when  the  Pharisees  said,  being  asked  by 
him,  that  the  image  and  superscription  were  Csesar's,  he  replied,  "  Render  there- 
fore unto  Csesar  the  things  which  are  Csesar's,  and  unto  God  the  things  that  are 
God's."  (Matthew  xxii.  18-21.)  It  seems  to  me  evident  that  Christ  cannot 
have  meant  to  give  in  this  case  a  rule  in  politics ;  for  the  image  on  the  coin 
cannot  be  brought  into  any  connection  with  the  question  whether  it  be  lawful  to 


CHRISTIANITY.  37 1 

on  politics  as  I  ascribe  to  it.  It  is,  however,  the  very  action 
of  Christ's  declaration  that  his  kingdom  is  not  of  this  world, 
upon  so  peculiar  a  state  of  things  as  that  which  existed  when 
his  religion  began  to  be  preached  over  Europe,  that  produced 
this  political  change. 

Around  the  Mediterranean  we  find  in  antiquity  numberless 
small  states,  which  have  each  a  peculiar  character,  not  only 
in  a  political  point  of  view,  but  also  in  regard  to  religion. 
"  The  ideas  of  God  and  divine  things  had,  we  might  say,  local- 
ized themselves."  ^  The  religions  of  all  these  separate  states 
or  autonomies  are  intimately  interwoven  with  their  political 
law.  Relationship  of  tribes  formed  the  only  and  yet  a  loose 
tie  between  some  of  them.  Rome  rose,  and  steadily  con- 
quered state  after  state.  Their  political  law  was  concentrated 
in  Rome,  and  the  various  religions  necessarily  followed 
thither.  But  what  were  these  religions  when  rent  from  their 
native  soil  ?  The  worship  of  Isis  had  a  meaning  in  Egypt ; 
powers  of  nature,  as  they  manifested  themselves  in  that  coun- 
try, were  revered  and  worshipped  in  her ;  in  Rome  it  became 
an  idolatry  without  any  other  sense  than  that  it  was  a  sign 
and  evidence  of  the  victorious  eagle  of  the  city.  All  the  vari- 
ous mythologies  brought  together  into  one  place  could  not 


pay  taxes,  except  in  this  way,  that  the  image  proves  that  the  person  represented 
has  the  supreme  power,  and  that  therefore  it  will  be  wise  to  pay  taxes,  unless 
there  is  sufficient  hope  for  successful  resistance.  Otherwise  Christ  would  at  once 
have  established  by  his  answer  that  all  conquest  is  right,  all  resistance  of  a  noble 
people  to  a  conqueror  wrong;  for  surely  there  was  no  other  connection  between 
the  Roman  Caesar  and  Palestine  than  that  of  mere  conquest.  The  Roman  gov- 
ernment disagreed  with  the  theocratic  fundamental  law  of  Moses.  The  Jews, 
under  Titus,  showed  that  they  had  not  calculated  their  resources,  by  which  they 
brought  infinite  misery  upon  themselves;  yet  no  one  will  be  bold  enough  to  say 
that,  waiving  the  question  of  expediency,  of  sufficiency  of  means,  the  Jews  had 
no  right  to  attempt  throwing  off  the  Roman  yoke. 

'  Book  I  of  vol.  ii.  of  Ranke's  Princes  and  People  of  Southern  Europe  in  the 
Sixteenth  and  Seventeenth  Centuries,  chiefly  from  unprinted  Reports  of  Legations, 
Berlin,  1834.  This  second  and  a  third  volume  have  also  the  separate  title,  "  The 
Roman  Popes,  their  Church  and  State  in  the  Sixteenth  and  Seventeenth  Centu- 
ries." The  French  translation  has  the  title  "  La  Papaut^."  Neander,  History 
of  the  Christian  Church,  Amer.  trans,  by  Torrey. 


372 


THE  STATE. 


but  contend  with  and  neutralize  one  another.  Rome  destroyed 
the  various  nationah'ties,  and  men  began  to  suspect  a  commu- 
nion with  each  other,  that  there  is  something  in  all  men 
which  might  be  a  bond,  beyond  the  mere  relation  of  the  citi- 
zen to  his  state.  It  was  the  first  dawn  of  a  most  glorious  truth. 
At  this  moment  appeared  Jesus ;  a  religion  was  preached 
which  gave  to  monotheism,  until  then  a  national  worship  of 
the  Hebrews,  a  cosmopolitic  character.  All  men  can  become 
Christians,  all  are  called  upon  to  become  such.  The  founder  of 
the  Christian  faith  had  abstained  not  only  from  touching  upon 
politics  in  general,  but  from  any  question  which  does  not 
directly  belong  to  religion  and  morality  or  is  not  most  closely 
connected  with  either.  Neither  science,  nor  industry,  nor  law, 
whether  civil  or  penal,  nor  the  principles  which  govern  the 
physical  well-being  of  nations,  the  exchange  of  their  labor,  in 
a  word,  what  we  treat  of  in  political  economy,  nor  nature,  lit- 
erature, poetry,  nor  metaphysics  proper,  except  in  as  far  as 
it  is  connected  with  questions  of  religion,  for  instance  the  im- 
mortality of  the  soul,  are  ever  touched  by  him.  Not  even 
the  soothing  and  elevating  admiration  of  God's  creation  is 
made  a  subject  of  his  instruction,  perhaps  as  too  much  de- 
pending upon  climate,  national  development,  and  degree  of 
civilization.  Nothing  in  what  he  has  taught  or  ordained  can 
be  an  obstacle  in  the  way  of  his  religion  being  received  at 
once  by  all  nations  and  all  classes  of  society ;  the  lowliest 
slave  may  embrace  it  as  well  as  the  mightiest  magistrate.  And 
what  does  this  religion  teach  ?  Aniong  other  things,  that  a 
benignant  deity,  ready  to  forgive  the  sincere  penitent,  is  not 
to  be  propitiated  by  any  outward  or  inward  things,  except  by 
purity  of  soul,  and  that  there  is  a  life  beyond  this  present  one, 
an  infinite  life  beyond  this  finite  one,  the  peculiar  character  of 
which  will  greatly  depend  upon  the  purity  or  impurity  of  the 
life  this  side  the  grave  ;  and  not  upon  birth,  not  upon  fortune, 
not  upon  caste  or  color.  A  spiritual  God,  not  attached  to  any 
nationality,  is  preached  to  all  men,  whatever  language  they  may 
speak,  whatever  country  they  inhabit — a  father  to  all  men. 
The  moral  value  of  the  individual  became  thus  immeasur- 


CHRISTIANITY.  3-, 

ably  raised.     Every  one  is  declared  to  have  a  moral  being  of 
his  own,  with  high  responsibilities,  to  answer  for  hereafter; 
no  one  will  find  favor  before  the  high  judge  on  the  ground 
that  he  was  born  in  a  certain  country  or  descended  of  a  cer- 
tain class.     A  God  has  been  proclaimed  to  be  the  God  of  all 
men,  high  or  low,  distant  or  near ;  a  God  before  whom  all  are 
equal.     The  state  could  no  longer  remain  all  and  everything; 
a  territory  had  been  discovered  beyond    the  state;  man  is 
something,  and  something  important,  besides  his  being  a  citi- 
zen ;  he  is  a  man  for  himself,  a  moral  agent,  called  upon  by 
the  Almighty  himself,  not  any  longer  imagined  as  having  any 
national  attribute,  to  fulfil  his  duties  and  to  receive  his  reward 
according  to  his  deeds.     The  farther  this  religion  extends,  the 
more  its  preachers  insist  that  no  language,  no  political  limits 
are  boundaries  for  Christians,  as  members  of  their  one  great 
church.     Tertullian  says,  "At  enim  nobis  ab  omni  glorise  et 
dignitatis  ardore  frigentibus   nulla  est  necessitas  coetus,  nee 
ulla  magis  res  aliena,  quam  publica.     Unam  omnium  rempub- 
licam  agnoscimus,  mundum."     (Apol.,  cap.  xxxviii.)     "No- 
thing is  farther  from  us  than  the  state.     We  acknowledge  but 
one  state — the  world." 

The  power  of  all  states  had  concentrated  in  Rome ;  the 
many  national  religions  had  neutralized  each  other.  There 
was  but  one  power  which  seemed  real  and  independent — the 
emperor.  Temples  were  erected  in  honor  of  him ;  sacrifices 
were  brought  to  him ;  oaths  were  taken  by  his  name ;  his 
statues  offered  an  asylum.  The  worship  of  the  emperor  was 
often  the  most  zealous  and  fervent.  (Tertull.,  Apol.,  cap. 
xxviii.)  Here  then  was  no  national  or  state  religion,  but 
power  and  religion  were  actually  one.  It  is  a  transitory  state 
of  things  which  fills  with  the  deepest  awe.  In  sacrificing  to 
the  imperator,  man  lowered  himself  to  the  deepest  slavery. 
The  national  religious  fervor  was  extinguished,  the  inspiring 
poetry  of  religion  was  destroyed;  it  was  deification  of  power, 
indeed  ;  the  apotheosis  of  might.  But  now  Christianity  rose  j 
it  called  upon  men  as  moral  beings,  to  the  lowest  of  whom  its 
founder  lowered  himself;  it  appeared  "like  a  morning  of  a 


374  THE  STATE. 

new  day."  The  apsis  of  the  basilica  contained  an  Augusteum ; 
the  statues  of  the  Csesars  were  divinely  worshipped ;  but  now 
they  were  exchanged  for  pictures  of  Christ  and  his  apostles.^ 
It  is  not  my  task  to  depict  here  how  that  religion,  which  had 
fled  to  the  catacombs,  stepped  finally  forth  victorious  into  the 
open  day,  until  we  see  the  monogram  of  Christ  in  the  labarum 
of  Constantine.  Wherever  it  spread,  and  however  soon  the 
peaceful  message  of  Christ  was  turned  into  a  blood-stained 
law  of  persecution,  yet  the  individual  moral  value  of  man  was 
acknowledged,  and  something  beyond  the  state,  higher  than 
its  supreme  power,  was  preached,  so  that  the  state  became  the 
means  to  obtain  something  still  higher.  What  a  difference, 
when  we  find  the  greatest  philosopher  of  antiquity  proving, 
as  he  thinks  he  does,  that  the  barbarians  (foreigners)  are  made 
to  obey,  to  be  the  slaves  of,  the  gifted  Greek  race,  and,  on  the 
other  hand,  Pope  Gregory  the  Great,  in  the  sixth  century,  re- 
ferring to  the  natural  law  of  original  liberty,  ordering  the 
manumission  of  bondsmen,  and  a  priest  recommending  to 
Louis  the  Pious  the  giving  of  alms  and  manumission  of 
bondsmen  as  works  of  equal  merit.^ 

CXXXVIII.  2.  Conquest  of  the  Roman  empire.  When  Chris- 
tianity had  begun  somewhat  to  reform  the  old  or  Latin  world, 
if  not  to  any  great  extent  the  deep  degeneracy  of  morals,  yet 
the  views  of  man,  it  soon  extended  to  those  tribes  who  were 
destined  to  uproot  decaying  Rome.  They  came  fresh  from 
the  north,  with  the  ardor  of  youthful  tribes,  a  fulness  of  glow- 
ing souls,  with  no  settled  civilization  among  them,  hence  free 
and  ready  to  embrace  Christianity  with  the  energy  of  young 
nations  and  a  religious  fervor  peculiar  to  the  northern  tribes. 
They  were  of  Teutonic  origin,  and  had  that  national  single- 
ness of  heart  by  which  most  Teutonic  tribes  have  ever  dis- 
tin^^uished  themselves  from  the  Latin  population  of  Europe, 


'  E.  Q.  Visconti,  Museo  Pio-Clementino  VII.,  p.  loo,  edii.  of  1807.  I  take 
this  quotation  from  Mr.  Ranke's  work  mentioned  above  in  note  I,  p.  371.  (His- 
tory of  the  Popes,  i.  28,  Amer,  edit.) 

•  Sraaragdi  Abbatis  Epist.  ad  Ludov.  Plum  apud  d'Achery,  Spicileg.,  t.  v.  p.  51. 


ENLARGEMENT  OF  STATES. 


375 


however   rude  we  know  them   to  have  been  at   their  first 
appearance,  when  yet  in  a  state  of  great  barbarity. 

The  northern  nations  are  less  excitable  than  the  southern 
race,  hence  they  cannot  so  easily  be  moved  in  masses.  With 
the  Greeks,  so  excitable  by  nature,  everything  became  an  im- 
petus to  the  mass ;  the  northern  man,  calmer,  more  phleg- 
matic, duller,  weighs  things  more  individually,  learns  to  con- 
sider the  state  in  relation  to  himself,  and  is  led  more  easily  to 
reflect  on  individual  interests — on  rights.  The  conquest  and 
consequent  distribution  of  the  Roman  provinces  among  the 
conquerors  produced  feudalism,  out  of  which  lawlessness,  but 
also  the  insisting  upon  individual  independence,  and,  later,  in- 
dividual right,  the  feeling  of  individual  honor  and  importance, 
grew  up,  a  direction  of  the  mind  which  was  by  no  means 
changed  when  the  cities  and  other  communities  entered  into 
that  chequered  and  curious  system. 

CXXXIX.  3.  Ejilargcment  of  states  ;  densencss  of  popidation. 
It  has  been  stated  already  that  the  politics  of  the  ancients 
were  essentially  city  politics.  As  the  word  is  derived  from 
TzoXiq,  so  actually  did  city  and  state  mean  with  them  the  same, 
(Respecting  the  meaning  of  r.uhq,  and  the  difference  between 
it  and  I0\>oq,  state  and  nation,  see  Aristot.,  Polit.,  p.  235,  ed. 
Casaub.  See  likewise  this  work,  book  ii.  sect,  xxix.)  The  same 
is  true  in  regard  to  civitas.  They  did  not  know  other  states  of 
freemen.  Persia  was  nothing  but  a  number  of  countries  con- 
quered and  held  together  by  the  victorious  tribe  of  the  Per- 
sians. They  formed  a  ruling  nobility.  Where,  however,  the 
people  can  conveniently  meet,  where  the  ruling  community 
can  assemble  at  any  moment,  it  is  much  more  natural  that  the 
majority  should  enjoy  unlimited  power,  than  in  states  where 
the  people  cannot  be  seen  at  once,  where  questions  must  be 
treated  more  abstractedly,  and  where  representing  agents, 
speaking  for  large  numbers,  must  be  heard.  Besides,  no 
proper  debating  is  possible  where  the  people  themselves 
meet ;  the  questions  must  be  prepared  beforehand  by  some 
authority,  so  that  the  vote  can  be  ay  or  no.     It  was  so  in  a 


3/6  THE  STATE. 

considerable  degree  in  Greece;  it  is  so  in  the  democratic  can- 
tons of  Switzerland,  for  instance,  Uri,  Glarus,  Schwyz.^  Yet 
debating,  however  abused  by  many,  is  one  of  the  chief  means 
to  obtain  an  acknowledgment  of  individual  rights,  and  to  pre- 
vent measures  injurious  to  them.  Such  measures  have  ever 
been  passed  in  haste  by  the  suspension  of  rules,  if  they  have 
been  passed  in  deliberative  assemblies. 

So  long  as  all  citizens  knew  each  other  personally,  the  ab- 
stract development  of  the  just,  separate  from  the  good,  was  as 
difficult  as  in  the  family. 

Increased  population  has  likewise  contributed  much,  both 
by  the  necessity  of  imagining  the  people  in  the  abstract,  and 
by  bringing  individuals,  personally  unknown  to  one  another, 
into  contact.  Increased  population  alone  had  a  most  decided 
effect  upon  the  administration  of  justice;  for  it  necessarily 
developed  the  institution  of  the  advocate,  without  which  jus- 
tice has  flourished  nowhere.  See  Feuerbach's  interesting 
remarks  on  the  subject  in  his  Considerations  on  Public  and 
Oral  Administration  of  Justice,  Giessen,  1821.  The  advocate 
has  to  defend  the  rights  of  the  citizen  in  the  abstract,  and  to 
defend  them  to  the  utmost — a  remark  which  in  part  applies 
to  representatives.  Representatives  are  much  more  apt  to 
insist  upon  the  rights  of  their  constituents  than  they  them- 
selves in  many  cases  would  be.  Who  will  tell  a  citizen  in 
the  market,  voting  on  a  law  for  himself,  not  to  give  up  a  right 
if  he  chooses  ?  I  am  well  aware  that  the  members  of  many 
estates  in  the  middle  ages  were  less  jealous  of  their  rights — 
except  as  far  as  pecuniary  interests  were  involved — than  the 
Greeks  in  the  agora ;  but  were  they  representatives  ?  Had 
they  to  give  an  account  ?  The  more  the  member  of  the 
estate  assumed  the  character  of  a  representative,  the  more  he 
was  obliged  to  defend  the  rights  of  his  constituents. 


'  The  description  of  a  Landtag,  or  annual  general  meeting  of  the  people,  in 
one  of  these  cantons,  is  very  curious  and  instructive  for  the  politician.  The 
great  deficiencies  of  direct  democracy,  unmediated  by  representation,  are  mani- 
fest. Personality  must  prevail;  it  cannot  be  helped, according  to  human  nature. 
The  state,  the  citizen's  rights,  etc.,  are  never  taken,  in  the  abstract,  on  their  own 
absolute  ground. 


INDUSTRIAL   CLASS.  377 

CXL.  4.  Printing.  The  art  of  printing,  in  becoming  the 
great  moving  agent  of  European  mankind,  an  agent  which 
increased  action  in  intensity  and  extent,  naturally  propelled 
men  also  in  the  sphere  of  the  presentation  and  acknowledg- 
ment of  individual  rights.  Printing  is  light :  on  whatever 
subject  it  falls  it  shows  it  clearer. 

5.  Increased  importance  of  money,  industry ;  increased  con- 
sideration of  the  industrial  class.  Ancient  governments  had 
originally  no  pecuniary  wants.  The  army  consisted  of  citi- 
zens, unpaid  for  the  service;  the  vessels  were  fitted  out  by 
way  of  special  taxation,  as  before  mentioned,  under  the  name 
of  htroupyia.  (See  Heeren's  work,  quoted  several  times.) 
Rome  was  a  conquering  state,  and  obtained  her  treasures 
from  subjected  provinces.  In  the  times  of  feudalism,  govern- 
ments wanted  likewise  comparatively  but  little  money.  Few 
concerted  national  actions  of  a  peaceful  character  took  place, 
the  feudal  monarch  supported  himself  by  the  income  of  his 
lands,  and  for  war  every  vassal  armed  himself  and  his 
men. 

In  more  modern  times,  however,  when  governments  had 
become  cabinet  governments,  the  expenses  of  cabinet  armies, 
cabinet  wars,  and  a  thousand  other  undertakings,  caused  great 
expenses,  far  exceeding  the  revenues  derived  from  crown 
domains.  Whence  can  the  money  come  ?  Conquest  cannot 
last  forever.  Labor  is  the  only  permanent  source  of  money; 
it  must  come,  therefore,  out  of  the  pockets  of  the  people,  who 
consequently  attracted  more  attention.  Nobility  and  clergy, 
paying  no  taxes,  or  very  limited  ones,  were  of  no  use  as  to 
furnishing  money.  The  industrial  classes  rose  in  importance, 
their  situation  and  rights  began  to  be  discussed ;  bondage  was 
more  and  more  contracted  and  removed,  free  industry  became 
to  be  considered  as  the  true  source  of  public  wealth,  and  the 
industrial  class,  formerly  consisting  of  slaves  or  serfs,  was 
acknowledged  as  honorable. 

In  the  early  times  of  Thebes,  no  one  was  admitted  to  a 
share  in  government  who  had  carried  on  any  trade  for  the 
last  ten  years  (Arist,  Pol.,  iii.  5) ;  in  our  times,  polytechnic 


378  THE  STATE. 

schools  are  established  in  many  countries^  which  give  a  thor- 
ough and  enlarged  education  and  corresponding  standing  in 
society,  to  the  industrial  class. 

By  the  continued  pecuniary  wants  of  governments,  those 
who  have  to  pay  the'  money  have  obtained,  as  has  been 
shown,  a  most  peculiar,  salutary,  and  continued  control  over 
government  in  those  states  in  which  the  primitive  and  ancient 
principle,  that  he  who  has  to  pay  money  must  be  asked  for  it, 
and  therefore  may  refuse  it — common  throughout  in  the  mid- 
dle ages — has  been  retained  or  re-established.  Even  in  states 
where  this  has  not  taken  place,  the  governments  are  obliged 
to  treat  the  people  with  far  different  regard  from  what  they 
would  do  did  they  not  stand  in  need  of  money.  The  want 
of  money  and  the  alienation  of  crown  domains  have  given 
the  commons  an  effectual  check  upon  government,  for  which 
we  cannot  imagine  any  other  possible  political  contrivance 
equally  efficient,  safe,  and  easy  in  operation. 

The  history  of  the  industrial  class  from  the  times  when 
slaves  only  carried  on  the  different  trades,  to  the  period  when, 
though  practised  by  free  men,  they  nevertheless  were  de- 
grading in  a  degree,  and  again  to  our  own  times,  when  their 
alliance  with  the  sciences  becomes  daily  closer  and  closer — a 
part  of  history  in  which  that  of  the  rise  and  importance  of 
cities  largely  enters — is  of  the  highest  interest  in  the  history 
of  civilization  in  general. 

The  large  body  of  the  people  have  entirely  changed  their 
position,  and  their  rights  are  acknowledged  accordingly.  As 
late  as  at  the  French  diet  of  1614,  the  speaker  of  the  third 
estate  was  obliged  to  address  the  king  on  his  knees,  while 
those  of  the  clergy  and  nobility  addressed  him  standing. 
When  president  De  Mesnes,  deputy  of  the  third  estate,  ven- 
tured to  say  that  "France  is  the  common  mother  of  all,  and 
has  nursed  all  at  the  same  breasts,"  and  that  the  third  estate 
are  the  younger  brothers,  and  that  if  treated  as  part  of  the 


»  I  have  enlarged  upon  this  subject  in  my  "  Constitution  and  Plan  of  Educa- 
tion for  Girard  College  for  Orphans,"  printed  by  OrSer  of  the  Board  of  Trustees, 
Philadelphia,  1834. 


DISCOVERY  OF  AMERICA.  370 

same  family  they  would  honor  and  love  the  others,  he  gave 
great  offence  to  the  nobility,  and  their  president  complained 
on  the  spot  that  "  the  third  estate  intended  to  establish  frater- 
nity with  them,  as  if  they  were  of  the  same  blood  and  equal 
virtue."  Now  the  king  of  the  French  is  called  the  king  of  the 
large  class  of  citizens  (commons)  by  way  of  excellence,  and 
Mr.  Dupin,  the  procurator-general  of  the  court  of  cassation, 
and  president  of  the  chamber  of  deputies  (speaker  of  the  com- 
mons), in  his  late  famous  argument  on  duelling  in  that  court, 
said,  "As  to  the  villanous  serfs  from  whom  we  of  the  present 
day  have  the  honor  of  descending,"  etc.  (French  papers  of 
June,  1838.) 

Science  is  daily  adding  to  the  importance  of  all  industrial 
activity  and  giving  rapid  increase  to  the  vivid  intercommuni- 
cation of  near  and  distant  communities,  and  with  it  elevating 
the  great  body  of  the  people.  Events  such  as  the  arrival  of 
the  first  steam-packet  of  a  regular  line,  in  the  month  of  April, 
1838,  at  New  York  from  England,  reducing  time  and  space, 
are  exponents  of  most  powerful  changes.  More,  infinitely 
more,  can  be  done  in  the  same  time,  with  the  same  capital ; 
while  the  rapid  exchange  of  knowledge  increases  greatly  the 
intensity  of  action. 

CXLI.  ^.  Discovery  of  America.  Of  the  many  consequences 
of  the  discovery  of  America,  deeply  affecting  the  whole  of 
modern  European  history,  I  will  mention  here  only  the  expan- 
sion of  commerce  and  its  increased  importance  —  another 
branch  of  industry,  with  the  growth  of  moneyed  capitals  and 
their  increased  importance ;  while  until  then  wealth  had  con- 
sisted almost  solely  in  real  estate,  and  the  land  was  owned  by 
the  nobility  or  the  church.  Nobility  depended  upon  birth, 
but  money  could  be  acquired  by  every  one.  Money  must  be 
acknowledged  in  history  as  a  very  powerful  popular  agent. 


END    OF    PART    FIRST. 


PART   II. 


POLITICAL    ETHICS    PROPER. 


381 


BOOK    III. 

POLITICAL  ETHICS   PROPER. 
CHAPTER    I. 

Reciprocal  Relation  of  Right  and  Obligation.  —  The  more  Liberty,  the  more 
Rights,  hence  the  more  Obligations.  —  Danger  of  Absolutism  in  Republics, 
without  due  Attention  to  Political  Ethics.  —  Additional  Reason  of  their  Im- 
portance derived  from  our  Race. — Another  Reason,  from  the  Period  in  which 
we  live  and  the  Direction  which  the  Study  of  Political  Sciences  of  late  has 
taken.  —  Private  Morality  necessary  for  Public  Success,  especially  in  Free 
States,  yet  not  sufficient. — Justice  and  Fortitude  or  Perseverance  chief  Virtues 
in  Political  Life.  —  Justice  the  Basis  of  the  other  Virtues.  —  Reputation  for 
Character  of  Individuals  and  States  chiefly  founded  upon  it.  —  Power  and 
Passion  equally  apt  to  blind  against  Justice. — Justice  affords  Power. — Coteries 
are  unjust  because  they  see  distortedly.  —  May  we  do  what  the  Law  either 
positively,  or  by  not  prohibiting,  permits  ? 

I.  It  has  been  my  endeavor  to  show,  in  the  first  part  of 
this  work,  the  original  connection  between  right  and  morahty, 
inasmuch  as  right  is  a  relation  necessarily  proceeding  from 
the  moral  character  of  men,  and  which  can  possibly  exist 
only  between  moral  beings.  This  connection,  however,  ex- 
tends farther:  it  is  a  lasting  one.  Where  men,  of  whatsoever 
condition — rulers  or  ruled,  those  that  toil  or  those  that  enjoy, 
individually,  by  entire  classes,  or  as  nations — claim,  maintain, 
or  establish  rights,  without  acknowledging  corresponding  and 
parallel  obligations,  there  is  oppression,  lawlessness,  and  dis- 
order; and  the  very  ground  on  which  the  idea  of  all  right 
must  forever  rest  —  the  ground  of  mutuality  or  reciprocity, 
whether  considered  in  the  light  of  ethics  or  of  natural  law — 
must  sink  from  under  it.  It  is  natural,  therefore,  that  wherever 
there  exists  a  greater  knowledge  of  right,  or  a  more  intense 
attention  to  it,  than  to  concurrent  and  proportionate  obliga- 

383 


384  POLITICAL  ETHICS. 

tion,  evil  ensues.  What  may  thus  be  found  a  priori  is  pointed 
out  by  history  as  one  of  its  gravest  and  greatest  morals.  The 
very  condition  of  right  is  obligation  ;  the  only  reasonableness 
of  obligations  consists  in  rights.  Since,  therefore,  a  greater 
degree  of  civil  liberty  implies  the  enjoyment  of  more  extended 
acknowledged  rights,  man's  obligations  increase  with  man's 
liberty.  Let  us,  then,  call  that  freedom  of  action  which  is 
determined  and  limited  by  the  acknowledgment  of  obligation. 
Liberty ;  freedom  of  action  without  limitation  by  obligation, 
Licentiousness.  The  greater  the  liberty,  the  more  the  duty. 
For,  the  less  bound  or  circumscribed  we  are  in  our  actions 
from  without,  the  more  indispensable  it  becomes  that  we  bind 
ourselves  from  within,  that  is,  by  reason  and  conscience.  This 
is  the  fundamental  law  of  all  political  ethics,  applicable  to  all 
periods  and  all  political  relations. 

Yet  there  are  weighty  reasons,  which  demand  of  us,  in  par- 
ticular, that  we  should  earnestly  and  conscientiously  consider 
this  fundamental  law  in  its  many  applications  and  binding 
consequences.' 

IL  Towards  the  end  of  the  preceding  book,  the  different 
character  and  yet  equally  injurious  effect  of  monarchical  and 
democratic  absolutism  have  been  spoken  of;  for  our  present 
purpose  it  is  necessary  to  say  a  few  more  words  on  this  subject. 
Monarchical  absolutism,  it  was  shown,  is  not  real,  in  so  far  as 
the  monarch,  individually,  can  have  no  power;  it  must  be  lent 
him,  he  must  be  supported;  and,  again,  it  is  substantial,  in  so 
far  as  individual  responsibility  goes.  In  his  name  the  acts  are 
done;  of  him  the  people,  once  risen,  demand  justice,  and  to 
him  the  wrongs  of  his  menials  are  ultimately  laid.  However 
great  his  power,  however  many  thousands  he  may  find  ready 
to  do  as  he  bids,  still,  what  is  done  is  at  his  peril.  There  is  a 
visible  despot,  and  therefore  a  visible   malefactor  when  the 

'  Reciprocity,  as  a  necessary  characteristic  of  right,  and  absolutism  (which  at 
once  ensues  where  this  reciprocity  is  denied),  as  well  as  the  inalienable  moral 
character  of  man,  and  the  primary  foundation  which  this  character  forms  for  all 
jural  relations,  have  been,  the  author  hopes,  sufficiently  treated  of  in  the  first  part. 


POLITICAL  ETHICS.  385 

time  of  reckoning  comes ;  while  the  consciousness  that  he 
must  lend  his  name  to  all  acts,  and  that  "  the  water,  when 
calm,  supports  the  boat,  but,  if  roused,  will  overwhelm  it,"' 
may  keep  even  the  Chinese  emperor  from  too  oppressive 
measures.^  Democratic  absolutism,  on  the  other  hand,  is 
real,  inasmuch  as  it  demands  no  support;  it  is  an  over-flood- 
ing power  itself;  and  it  is  not  substantial  in  so  far  as  it 
is  nowhere  visibly  embodied ;  it  acts,  it  strikes,  with  fear- 
ful certainty  ;  but  the  moment  after,  where  can  the  author  of 
the  deed  be  grasped?  Responsibility  vanishes ;  the  injured 
party  cannot  seize  it,  and  the  absolute  actors  neither  fear  the 
rising  of  those  over  whom  they  sway,  nor  do  they  themselves 
feel  so  distinctly  their  responsibility,  because  it  appears  di- 
vided. Their  conscience  feels  appeased ;  although,  as  we 
have  seen,  there  is,  in  fact,  no  divisibility  of  anything  which 
belongs  to  morals.^    But  liberty,  or  untrammelled  action,  with- 


»  A  Chinese  empeior — so  say  the  ancient  books  of  the  Chinese — said  to  his 
heir,  "  You  see  that  the  boat  in  which  we  sit  is  supported  by  the  water,  which  at 
the  same  time  is  able,  if  roused,  to  overwhelm  it:  remember  that  the  water 
represents  the  people,  and  the  emperor  only  the  boat."  T.  F.  Davis,  The 
Chinese,  vol.  i.  p.  212. 

«  The  same  author  makes  the  following  remark  (vol.  ii.  p.  428)  :  "  The  emperor 
— the  theoretical  father  of  his  people— does  not  find  it  so  easy  openly  to  impose 
new  taxes  as  his  necessities  may  require  them  ;  and  his  power,  though  absolute 
in  name,  is  limited  in  reality  by  the  endurance  of  the  people,  and  by  the  laws  of 
necessity."     See  likewise  Book  ii.  chap.  6,  \  65  et  seq. 

3  Many  years  ago,  on  my  way  through  Geneva,  I  became  acquainted  with  a 
member  of  the  former  French  Constituent  Assembly,  who  had  always  acted  with 
Robespierre,  so  long  as  the  latter  was  at  the  head  of  his  party.  The  manner  in 
which  this  exile  spoke  of  the  "  poor  Robespierre,"  "  the  virtuous  man  to  whom 
sufficient  time  had  not  been  allowed  to  develop  his  plans,"  greatly  attracted  my 
interest.  For  the  first  time  in  my  life  I  saw,  face  to  face,  one  who  had  acted  in 
those  scenes,  to  me  already  seeming  like  a  distant  and  fearful  history.  I  could 
not  help  putting  a  number  of  questions  as  to  the  massacres  and  those  enormous 
sacrifices  of  life,  when  he  spoke  of  liberty.  When  I  suggested  that  surely  for 
the  priests  who  were  slaughtered  there  was  no  liberty,  he  answered  that  it  was 
believed  they  conspired  with  the  foreign  armies.  When  I  repeatedly  urged  the 
question  whether  they  really  did  conspire,  whether  there  was  any  proof,  he  would 
only  shrug  his  shoulders  and  say,  "On  le  croyait,  mon  cher."  This  On  made  a 
very  deep  impression  upon  me,  which  time  has  not  eftaced ;  and  has  repeatedly 
recurred  to  my  mind  in  meditating  upon  politics  and  history. 

25 


386  POLITICAL   ETHICS. 

out  conscientiousness  of  action,  which  we  have  called  licen- 
tiousness— rights,  I  repeat,  without  acknowledged  obligations 
—  necessarily  lead  to  absolutism,  first  to  democratic,  and, 
through  it,  generally  to  monarchic.  A  sincere  reverence, 
therefore,  for  liberty  demands  imperatively  that  we  should 
well  know  our  political  obligations,  both  that  liberty  may  not 
degenerate  into  absolutism,  and  that,  on  the  other  hand,  we 
should  feel  our  duty  in  prizing,  cherishing,  and  supporting, 
keeping,  watching,  and  jealously  defending  this  last  and 
highest  of  earthly  goods,  lest  the  forms  of  freedom  with  the 
spirit  of  bondsmen  become  only  the  fitter  means  of  thraldom. 
For  a  government  which  rules  with  the  traditional  forms  of 
past  liberty  over  a  servile  people  shifts  its  responsibility  of  all 
odious  acts  upon  the  people  themselves.  "  Parliaments  with- 
out parliamentary  power  are  but  a  fair  and  plausible  way  into 
bondage,"  was  the  ruling  maxim  of  Pym.  And  this  "  parlia- 
mentary power,"  of  course,  presupposes  parliamentary  spirit, 
that  is,  true  love  and  esteem  of  liberty.  Tyranny  and  mere 
tranquillity  are  things  for  which  men  may  be  trained,  into 
which  they  maybe  forced.  There  is  no  more  quiet  and  peace- 
able people  on  earth  than  the  Chinese.  But  liberty  is  too 
noble  in  its  nature  to  be  forced ;  to  support,  enjoy,  and  per- 
petuate it,  man  must  cultivate  his  best  and  noblest  parts.'  An 

'  Quiet  has  frequently  been  mistaken  for  civilization.  The  Chinese  have  a 
saying,  "  Better  a  dog  in  peace  than  a  man  in  anarchy."  Mr.  Laplace,  a  French 
circumnavigator,  says,  "  I  repeat  that  the  Chinese  are  very  much  our  superiors  in 
true  civilization — in  that  w^hich  frees  the  majority  of  men  from  the  brutality  and 
ignorance  which,  among  many  European  nations,  place  the  lowest  classes  of 
society  on  a  level  with  the  most  savage  beasts,"  and  Mr.  Davis,  tit  supra,  vol.  ii. 
p.  29,  adds,  "  Monsieur  Laplace  is  quite  right :  the  lower  classes  of  the  Chinese 
people  are  better  educated,  or  at  least  better  trained,  than  in  most  countries."  I 
fear  that  the  words  "  or  at  least  better  trained"  contain  the  essence  of  the  remarks 
of  both  these  gentlemen.  If  we  peruse  the  Chinese  novels  which  have  been 
given  to  the  Western  public  and  are  represented  by  the  best  Chinese  scholars, 
among  others  by  Mr.  Davis  himself,  as  faithful  pictures  of  their  life,  and  which, 
indeed,  bear  great  internal  evidence  of  truth,  we  shall  not  feel  tempted  to  desire 
to  exchange  our  civilization  for  theirs,  however  willingly  we  may  acknowledge 
all  those  points  in  which  they  are  really  our  superiors.  Rather  all  the  disturbance 
of  the  West,  so  that  it  be  a  fermentation  which  promises  a  better,  purer  state, 
than  Chinese  peace  and  stagnation. 


POLITICAL  ETHICS. 


387 


active  and  preventive  police  may  do  much  towards  making  fit 
subjects  ;  but  the  essentials  of  a  freeman  are  within ;  they 
cannot  be  forced  upon  him  from  without;  they  must  grow 
out  of  his  moral  nature.  They  require  character,  love  of 
justice,  love  of  truth,  self-respect,  devotion  to  our  neighbors, 
esteem  of  our  kind,  and  ardor  of  cultivation. 

III.  As  men,  therefore,  and  especially  as  freemen,  we  are 
bound  to  acquaint  ourselves  thoroughly  with  our  ethic  rela- 
tions in  politics.  We  shall  find  that  we  are  not  the  less  so  if 
we  contemplate  to  what  race  we  belong  and  in  what  period 
we  live. 

From  the  vast  continent  of  Asia  it  appears  that  all  civiliza- 
tion originally  flowed,  and  to  it  we  are  invariably  led,  as  to 
the  fountain-head  of  history.  It  is  there  that  all  those  reli- 
gions originated  which  count  the  largest  number  of  votaries;' 
there  that  the  ancient  Sanscrit  was  spoken,  the  grandest  idiom 
uttered  by  human  tongue,  and  the  earliest  sister  of  so  many 
Western  languages  ;  =  there  that  traffic  commenced,  and  larger 
empires  first  were  founded;  and  thence  that  we  received  most 
of  the  first  inventions  in  all  the  simpler  and  therefore  most 
important  mechanical  arts.  But  the  Europeans  and  their 
descendants  in  other  parts  of  the  globe  have  perfected  and 
developed  all  these.  Christianity  rose  in  Asia,  indeed,  but 
what  effect  has  it  exercised  on  the  Asiatic  nations?  In 
Europe  it  penetrated  to  the  inmost  elements  of  society. 
Empires  were  first  formed  in  the  East,  governments  were  first 


»  Buddhism,  Brahminism,  the  doctrine  of  Confucius,  and  that  of  Zoroaster,  to- 
gether with  the  tliree  monotheistic  religions,  Judaism,  Christianity,  and  Moham- 
medanism, are  all  of  Asiatic  origin. 

^  Ccmp.  Franz  Bopp,  Comparative  Grammar  of  Sanscrit,  Zend,  Greek,  Latin, 
Lithuanian,  Ancient  Sclavonic,  Gothic,  and  German,  Berlin,  1st  ed.,  1S33-1852 
(in  German);  T.  C.  Prichard,  Eastern  Origin  of  the  Celtic  Nations  proved  by  a 
Comparison  of  their  Dialects  with  the  Sanskrit,  Greek,  Latin,  and  Teutonic 
Languages,  London,  1831  ;  and  Etymological  Enquiries  in  the  Province  of  the 
Indo-Germanic  Languages,  with  particular  reference  to  the  Mutation  of  Sound 
in  the  Sanscrit,  GreeV,  Latin,  Lithuanian,  and  Gothic  (in  German),  by  F.  A. 
Pott,  Professor  in  the  University  at  Halle,  Lemgo,  2d  ed.,  1859  and  onw. 


388  POLITICAL  ETHICS. 

there  established  on  a  larger  scale,  but,  with  few  exceptions, 
those  tribes  over  which  they  hold  sway  live  on  from  thou- 
sands to  thousands  of  years  in  the  torpor  or  the  anarchy  of  des- 
potism. The  arts  and  commerce  started  into  existence  in- 
deed, but  they  have  been  slowly  perfected,  in  the  East ;  many 
branches  of  industry  are  in  the  same  condition  in  which  they 
were  a  thousand  years  ago.  There  indeed  many  languages 
of  surprising  perfection  and  wonderful  depth  of  thought  were 
developed,  when  Europe  spoke  yet  the  uncouth  accents  of 
barbarism ;  and  yet,  great  and  noble  as  many  of  the  Eastern 
works  are,  Oriental  literature  is  very  confined  if  compared 
with  the  vast  and  multifarious  treasures  of  the  West.  Devas- 
tating conquerors  have  appeared  one  after  the  other  in  the 
extensive  regions  of  that  continent,  but  they  appear  low,  with 
hardly  any  exception,  if  compared  with  the  powerful  genius 
and  mental  greatness  of  European  generals,  from  some  of  the 
first  Greek  commanders  to  the  Napoleons  and  Wellingtons  of 
our  own  times.  Architecture  and  sculpture  originated  in  the 
East,  and  gratefully  we  ought  to  acknowledge  it,  yet  Europe 
perfected,  purified,  and  refined  also  here.  Compare  the  Hin- 
doo idol  or  Egyptian  statue  with  the  works  of  Phidias  or  Thor- 
waldsen,  the  mighty  piles  of  Asiatic  temples  with  Grecian  or 
Gothic  architecture,  in  taste  and  the  expression  of  thought.' 


*  Some  readers  may  not  be  willing  to  allow  the  justice  of  my  remark  if  applied 
to  Gothic  architecture  and  that  of  Egypt,  the  whole  civilization  of  which  forms 
a  connecting  link  between  Asia  and  Europe,  and  may  undoubtedly  be  included, 
in  several  points  of  view,  in  Asiatic  civilization.  The  many  and  magnificent 
recent  works  on  Egypt  have  revealed  to  us,  among  other  treasures,  a  grand, 
thoughtful,  and  beautiful  architecture.  Which  of  the  two  might  be  considered 
as  bearing  witness  to  a  more  developed  state  of  the  art,  as  closely  connected  with 
the  inner  man,  is  not  to  be  decided  in  this  place.  In  favor  of  whichever  side 
the  decision  would  be,  it  does  not  change  our  position.  It  is  perhaps  one  of  the 
most  striking  proofs  of  the  refined  intellect  of  the  Greeks,  and  one  closely  con- 
nected with  their  national  being,  that  they  were  the  first  who  elevated  themselves 
so  high  as  to  separate  the  ideas  of  perfection  and  purity  of  taste  from  those  of 
mighty  masses.  A  single  column  of  Grecian  taste  is  still  a  whole,  a  separate 
work  of  art  in  itself,  independent  and  relying  on  its  own  harmony  and  correct- 
ness. As  to  Chinese  art,  striking  and  not  without  taste  in  many  instances,  it 
nevertheless  appears  to  me,  if  I  may  express  it  thus,  as  refined  and  tasteful  child- 


POLITICAL  ETHICS. 


389 


Three  times  did  Asia  send  her  swarming  hordes  to  conquer 
the  West,  but  the  Persians,  Mongols,  and  Arabians  were  re- 
pelled, although  in  the  first  case  but  a  small  country  had  to 
fight  against  the  armies  of  a  gigantic  empire,  and  in  the  latter 
two  the  invading  hosts  were  flushed  with  recent  victories, 
while  Europe  was  prostrated  by  disorganizing  eruptions. 
Whatever  view  of  the  superiority  of  European  civilization  we 
may  take,  and  however  ready  we  may  be  to  acknowledge 
those  imperfections  and  vices  which  unfortunately  belong 
more  peculiarly  to  our  own  race,  that  is,  the  white  Cau- 
casian race  as  developed  in  Europe  and  the  Western  hemi- 
sphere, it  cannot  be  in  fairness  denied  that  mental  action, 
both  in  variety  and  intensity,  is  infinitely  greater  in  the  pro- 
gressing European  race  than  in  any  other  on  the  globe,  and 
that  among  those  things  which  most  characterize  our  race, 
political  superiority  stands  among  the  first.  Political  power, 
political  organism,  state,  right,  law,  are  terms  which  have 
received  an  import,  and  the  subjects  which  they  designate 
have  received  a  development,  in  this  pre-eminent  race,  far 
greater  in  extent  and  superior  in  kind  to  that  which  any 
Asiatic,  African,  or  aboriginal  American  tribe  has  given  them. 
Heeren,  who  has  shown,  probably  more  clearly  than  any  one 
before  him,  how  much  we  owe  to  the  early  East,  in  commerce 
and  so  many  other  branches  of  civilization,  dwells  on  this 
European  superiority,'  and  ascribes  it  in  a  great  measure  to 
the  institution  of  monogamy,  peculiarly  European,  and  to 
political  wisdom.  But  what  is  this  wisdom  ?  Certainly  not 
shrewdness,  cunning,  mere  prudence  and  sagacity ;  for  Asia 
has  produced  innumerable  characters  who  excelled  in  these 


ishness.  Everything  which  excites  the  admiration  of  the  child — contrast  (in 
form  and  color  and  conception),  peculiarity  (and  monstrosity),  and  gaudincss — 
seems  to  form  the  foundation  of  Chinese  art  and  taste.  How  totally  different  is 
the  spiritualized  art  of  the  Greeks,  which  delights  the  more  the  more  refined  the 
mind  is,  and  is  the  chaster  and  the  nobler  the  more  purely  it  follows  out  its  own 
principles  ! 

'  Comp.  his  Historical  Researches  into  the  Politics,  Intercourse,  and  Trade  of 
the  Principal  Nations  of  Antiquity,  translation,  Oxford,  1833,  3  vols.;  and  Intro- 
duction to  his  Sketch  of  the  Political  History  of  Greece,  translation,  Oxford,  1834. 


390 


POLITICAL  ETHICS. 


qualities.  Indeed,  if  we  peruse  the  many  Asiatic  works  with 
which  British  literature  has  teemqd  for  the  last  twenty  years, 
we  are  struck  with  the  fact  that  nearly  all  those  men  who 
most  distinguished  themselves  in  Asia  by  powerful  actions 
were  consummate  masters  of  craft  and  cunning,  while  every 
one  who  has  visited  those  parts  of  the  East  where  large 
numbers  of  Europeans  have  become  known  is  aware  that  the 
natives  speak  of  the  greater  love  of  truth  and  mutual  depend- 
ence of  the  Western  people  as  a  matter  of  course. 

The  true  cause  seems  to  be  that  Europe  first  broke  the  un- 
happy chains  with  which  the  patriarchal  principle,  if  applied 
to  larger  communities,  that  is,  if  family  relations  are  made 
the  fundamental  principle  of  the  state,  fetters  the  people  in 
stationary  despotism, — a  species  of  government  to  which,  it 
seems  to  me,  polygamy  must  almost  irresistibly  lead,  and 
which  I  cannot  imagine  to  exist  long  in  connection  with 
monogamy ;  that  it  was  in  Europe  that  Right  was  first  dis- 
tinctly grounded  upon  man's  ethical  character;  that  there, 
consequently,  State  and  Government  first  became  subjects  of 
deep  inquiry,  because  they  were  not  any  longer  considered 
either  as  mere  effects  of  force  or  the  unalterable  family  rela- 
tion ;  and  that  there  man  first  maintained  liberty  as  a  civil 
institution  and  became  ready  to  bear  great  sacrifices  for  it. 
The  peculiar  geographical  situation  of  Europe  aided,  it  is 
probable,  greatly  in  this  rapid  and  unceasing  development ; 
for  although  neither  climate  nor  soil  determines  alone  the 
character  of  a  nation,  they,  and  especially  the  means  or  ease 
of  intercommunication  afforded  by  the  geographical  con- 
figuration of  extensive  districts,  still  exercise  a  powerful  influ- 
ence upon  it,  which  is  peculiarly  strong  in  the  earlier  stages 
of  civilization.  But  this  very  consideration  leads  us  again  to 
perceive  the  superiority  of  the  European  race.  For  China 
enjoys  almost  the  same  advantages  with  Europe  and  the 
United  States  in  respect  to  climate,  soil,  and  rivers  ;  it  has 
remained  severed  by  its  geographical  position  from  many  of 
those  disturbances  which  have  influenced  and  afiflicted  other 
Asiatic  nations, — circumstances  which  close  observers  have 


POLITICAL   ETHICS. 


391 


pointed  out  as  prominent  causes  of  the  superiority  of  Chinese 
civih'zation  over  that  of  all  the  rest  of  Asia,  Persia  not  ex- 
cepted.'    Yet  if  we  compare  that  most  eastern  Asiatic  nation 


*  The  following  is  an  interesting  extract  from  the  work  of  Mr.  Davis  on 
China,  already  quoted.     In  the  introduction,  pp.  7  and  8,  he  says, — 

"  The  eaj-ly  advancement  of  China,  in  the  general  history  of  the  globe,  may 
likewise  be  accounted  for,  in  some  measure,  by  natural  and  physical  causes,  and 
by  the  position  of  the  whole  of  that  vast  country  (with  a  very  trivial  exception) 
within  the  temperate  zone.  On  this  point  the  author  will  repeat  some  observa- 
tions which  he  long  since  made  in  another  place  :  that  '  an  attentive  survey  of 
the  tropical  regions  of  the  earth,  where  food  is  produced  in  the  greatest  abun- 
dance, will  seem  to  justify  the  conclusion  that  extreme  fertility,  or  power  of  pro- 
duction, has  been  rather  unfavorable  to  the  progress  of  the  human  race  ;  or,  at 
least,  that  the  industry  and  advancement  of  nations  have  appeared  in  some 
measure  to  depend  on  a  certain  proportion  between  their  necessities  and  their 
natural  resources.  Man  is  by  nature  an  indolent  animal,  and  without  the  stimu- 
lant of  necessity  will,  in  the  first  instance,  get  on  as  well  as  he  can  with  the  pro- 
vision that  nature  has  made  for  him.  In  the  warm  and  fertile  regions  of  the 
tropics,  or  rather  the  equinoctial,  where  lodging  and  clothing,  the  two  necessary 
things  after  food,  are  rendered  almost  superfluous  liy  the  climate,  and  where 
food  itself  is  produced  with  very  little  exertion,*  we  find  how  small  a  progress 
has  in  most  instances  been  made  ;  while,  on  the  other  hand,  the  whole  of 
Europe,  and  by  far  the  greater  part  of  China,  are  situated  beyond  the  northern 
tropic.  If,  again,  we  go  farther  north,  to  those  arctic  regions  where  man  exists 
in  a  very  miserable  state,  we  shall  find  that  there  he  has  no  materials  to  work 
upon.  Nature  is  such  a  niggard  in  the  returns  which  she  makes  to  labor,  that 
industry  is  discouraged  7Vi\(}i  frozen,  as  it  were,  in  the  outset.  In  other  words,  the 
prop07-tion  is  destroyed  ;  the  equinoctial  regions  are  too  spontaneously  genial 
and  fertile;  the  arctic  too  unfriendly  barren;  and  on  this  account  it  would  seem 
that  industry,  wealth,  and  civilization  have  been  principally  confined  to  the  tem- 
perate zone,  where  there  is  at  once  necessity  to  excite  labor  and  production  to 
recompense  it !  There  are,  no  doubt,  other  important  circumstances,  besides 
geographical  situation,  which  influence  the  advancement  of  nations ;  but  this  at 
least  is  too  considerable  an  ingredient  to  be  left  out  of  the  calculation.'  " 

It  will  be  recollected  that,  on  various  occasions  in  the  first  part  of  this  work, 
much  importance  has  been  attributed  to  two  principles  of  man's  social  develop- 
ment, namely,  that  everything  which  characterizes  man  as  such  must  first  be 
developed,  except  his  physical  nature,  and  that  the  first  starting-point  of  every- 
thing indispensably  necessary  to  man's  social  development  has  been  indissolubly 
connected  by  the  Creator  with  the  material  world.     We  observed  it  with  regard 


*  "See  the  observations  of  Humboldt  on  the  use  of  the  banana  in  New  Spain."     Every  one 
who  has  been  in  the  West  Indies  can  testify  to  the  justness  of  these  remarks. 


392  POLITICAL   ETHICS. 

with  the  western  European  race,  in  intellectual  and  political 
civilization,  it  will  not  be  difficult  to  form  a  just  decision. 


to  the  family  and  other  necessary  institutions.  In  the  present  case  the  principle 
is  manifest.  Man  ought  to  labor;  yet  would  he  have  labored  from  the  begin- 
ning? The  most  genial  regions  are  the  earliest  in  the  advance  of  civilization, 
especially  Hindostan.  Its  luxuriance  encouraged  the  first  starting;  but  the  lux- 
uriance is  too  abundant;  man  relaxed  under  it;  only  the  first  effort  was  excited; 
energy  showed  itself  farther  north,  in  Egypt,  Greece,  Rome.  At  later  periods 
man  found  assistance  in  a  thousand  discoveries,  which  enabled  him  to  carry 
civilization  through  a  long  winter,  both  in  a  physical  and  mental  point  of  view. 
Civilization  extended  farther  and  farther  north,  and  a  country  like  Canada,  which 
would  never  have  induced  man  to  start  in  the  path  of  industry,  may  still  become 
a  flourishing  one.  The  general  remarks  of  Mr.  Davis  are  undoubtedly  true.  If 
the  negroes  of  Hayti  could  not  contrive  to  live  by  paying  a  trifling  attention  to 
a  few  banana-trees,  they  would  not  have  allowed  all  the  sugar-fields  to  go  to  ruin. 
Hence  likewise  the  evil  consequences  which  the  introduction  of  the  potato  into 
some  countries  has  produced,  although  its  good  effects,  upon  the  whole,  in  ward- 
ing oft'  famine,  formerly  so  frequent,  will  be  denied  by  no  one.  But  it  is  cer- 
tainly true  that  the  potato  has  frequently  operated  in  the  northern  regions  as  the 
banana  has  in  the  tropical.  It  made  the  bare  subsistence  of  a  rapidly-increasing 
population  possible,  and  thereby  lowered  the  standard  of  comfort,  industry,  and, 
consequently,  of  energy  and  civilization  in  general. 

A  geographical  consideration  of  importance  respecting  European  civilization 
is  the  much  greater  extent  of  sea-coast  in  proportion  to  the  area  of  Europe,  com- 
pared with  any  other  of  the  four  large  divisions  of  the  globe.  Europe,  as  Alexan- 
der Plumboldt  justly  expresses  it,  is  the  most  articulated  of  all  parts  of  the  world. 
The  sea-coast,  however,  is  favorable  to  civilization,  and,  in  general,  to  the  spirit 
of  liberty,  were  it  even  for  no  other  reason  than  that  the  sea,  erroneously  called 
by  the  ancient  poet  Dissociabilis  Oceanus,  is  the  great  means  of  communication, 
and  that  seafaring  is  favorable  to  manliness  and  boldness.  Prescott,  in  speaking 
of  the  republican  spirit  of  the  Aragonese,  makes  some  pertinent  remarks  on  this 
subject  in  his  History  of  Ferdinand  and  Isabella,  vol.  i.  p.  59,  et  seq. ;  and  the 
observations,  somewhere  in  Heeren's  works,  on  the  indented  shores  of  Greece, 
apply  more  or  less  to  Europe  in  general.  Mr.  Julius,  in  his  late  work,  "  The 
Moral  Condition  of  North  America,"  in  German,  2  vols.,  Hamburg,  1839,  has  the 
following  passage  (vol.  i.  p.  426)  :  "  If  we  take  the  area  of  Europe  as  the  unit, 
we  find  that  in  the  almost  unbroken  triangle  of  Africa,  three  times  as  large  as 
Europe,  the  width  is  to  the  length  as  one  to  one,  so  that  the  triangle  becomes 
equilateral.  The  area  of  Asia  is  more  than  four  times  that  of  Europe,  and  her 
width  to  the  length  of  the  circumference  is  as  dne  to  four  :  in  America,  almost 
four  times  as  large  as  Europe,  the  proportion  of  the  width  to  the  length  of  its 
circumference  is  as  one  to  five,  and  in  Europe  as  one  to  six.  Africa  has  a  sea- 
coast  of  about  3800  German  miles;  Europe,  one-third  as  large,  5400 ;  Asia, 
more  than  four  times  as  large,  7000  German  miles;  and  America,  nearly  four 


POLITICAL  ETHICS.  393 

This  Western  race,  which  is  distinguished  by  an  onward 
movement  from  the  times  of  its  first  dawn  of  civilization,  is  at 
present  in  one  of  those  periods  which  are  pecuHarly  stirring, 
similar,  perhaps,  in  its  character  of  universal  and  thrilling 
activity,  to  that  of  the  Reformation,  preceded  as  it  was  by  the 
exciting  period  of  maritime  discoveries.  We  are,  indeed, 
ever  apt  to  consider  objects  near  us  of  peculiar  magnitude ; 
but  the  calmest  mind,  the  most  comprehensive  intellect 
familiar  with  all  the  most  activ^e  periods  of  history,  will  prob- 
ably not  deny  that  our  period  is  a  peculiarly  active  one,  and 
one  of  those  epochs  in  which  man  seems  to  employ  all  his 
energy  in  realizing  some  important  idea.  A  time  when  in 
the  East  the  Turkish  empire  is  busily  engaged  in  severing 
itself  from  Asiatic  civilization  and  joining  European,  and  in 
the  West  a  railroad  is  building  to  effect  that  for  which  Colum- 
bus sought  so  long  and  ardently  in  vain,  and  when  the  two 
poles  of  this  conductor  from  the  East  to  the  West,  from  the 
Atlantic  into  the  Pacific,  will  be  brought  in  contact  with  other 
hemispheres  by  the  busy  steamboat,  braving  wind  and  cur 
rent, — such  a  period  seems  not  to  be  a  common  one. 

Future  ages,  perhaps,  will  look  upon  our  period  as  a  pre- 
eminently political  one  ;  as  that  period  in  which  governments 
from  cabinet  governments  became  national  and  popular  gov- 
ernments, superseding  the  period  of  court  politics,  when,  as 
an  eminent  continental  writer  expressed  it,  "  the  court  law 
came  to  be  made  the  common  law;"'  as  the  period  in  which 
broad  ideas  of  substantial  civil  liberty  were  more  clearly  de- 
fined and  more  widely  secured  for  a  large  number  of  nations; 
in  which  the  primary  relation  of  the  citizen  to  the  state  be- 
came a  distinct  subject  of  intense  political  action ;  as  the 
age  of  constitutions.  If  so,  it  behoves  every  one  to  perform 
conscientiously  his  task  in  this  animated  time.  But,  whether 
it  be  so  or  not,  certain  it  is  that  many  entirely  new  agents  of 


times  as  large  as  Europe,  has  a  sea-coast  in   length  between  Europe  and  Asia. 
Or,  if  we  consider  for  a  moment  the  area  of  all  equal,  the  lengths  of  sea  coast  of 
Africa,  America,  Asia,  and  Europe  are  in  the  proportion  of  2i^,  48,  51,  and  162." 
» Justus  Moeser,  Osnabriick.  Gesch.,  i.  part  i.  23. 


394 


POLITICAL  ETHICS. 


human  society  have  come  into  play  and  act  with  an  intensity 
which  gives  a  far  greater  importance  to  everything  connected 
with  politics,  for  weal  if  we  do  our  duty,  for  woe  if  we  neglect 
it,  than  at  any  previous  period,  except  that  of  antiquity. 

IV.  A  last  and,  in  my  opinion,  an  important  reason  may  be 
urged,  why  we  should  take  the  ethical  elements  of  politics 
into  serious  consideration  just  at  the  present  period.  Among 
the  most  prominent  characteristics  of  our  times  seem  to  be  a 
general  exertion  to  diffuse  knowledge,  a  successful  tendency 
to  popularize  governments,  a  most  extensive  industrial  act- 
ivity, arising  in  fact  out  of  the  diffusion  of  knowledge,  or,  as 
it  has  previously  been  called,  the  union  of  science  and  indus- 
try, and  the  peculiar  attention  which  for  the  last  seventy  or 
eighty  years  has  been  paid  by  many  gifted  minds  to  the  pro- 
ductive energies  of  nations  and  all  the  laws  which  regulate 
the  exchange  of  labor  and  ^produce.  Since  Locke  wrote  his 
treatises^  on  government,  i^w  distinguished  men  in  England 
or  America  have  written  exclusively  on  the  principles  of  poli- 
tics or  the  first  elements  of  the  state ;  and  ever  since  Adam 
Smith,  the  attention  of  political  writers  has  been  directed 
almost  wholly  to  the  investigation  of  those  subjects  which 
are  more  or  less  closely  connected  with  production,  exchange, 
and  consumption,  commerce,  industry,  population,  and  pau- 
perism,—  in  short,  to  subjects  of  political  economy.  These 
inquiries  into  the  material  interests  of  human  society  are  of 
the  greatest  importance,  and  it  would  show  great  ignorance 
indeed  should  any  one  attempt  to  deny  that  they  have  exer- 
cised a  powerful  influence  upon  the  whole  European  race  and 
the  peaceful  intercourse  among  the  states  into  which  it  is 
divided.  But  it  will  always  happen,  when  some  new  ideas  of 
vast  importance  break  through  previous  darkness,  and  men 
strive  to  realize  them  in  practical  life  on  a  large  scale,  after 


'  In  Heeren's  Historical  Treatises,  trans'ation,  Oxfc.rd,  1836,  there  is  an  in- 
teresting article  on  the  Rise,  Progress,  and  Practical  Influence  of  Political  Theo- 
ries, of  which  I  would  recommend  the  first  part,  which  is  historical,  to  the 
perusal  of  my  reader.     The  latter  (political)  part  seems  to  me  indifferent. 


POLITICAL  ETHICS.  305 

having  been  conceived  and  cultivated  by  gifted  individuals  in 
the  necessary  historical  progress  of  civilization,  that  for  a 
time  they  absorb  the  human  mind  and  general  mental  activity, 
to  the  exclusion  of  others  of  equal  or  greater  importance. 
We  thus  find  that  zealous  inquiries  into  the  material  interests 
of  the  masses  have  colored  investigations  which  belong  to 
other  provinces,  and  that  self-interest,  not  indeed  unfrequently 
qualified  as  "  enlightened  self-interest,"  has  been  assumed  as 
the  sole  principle  of  all  questions  relating  to  man's  political 
existence;  that  his  activity,  ingenuity,  and  industry  in  the 
material  world  have  been  assumed  as  the  sole  points  in  ques- 
tion with  reference  to  our  social  state.  Were  we  to  study  the 
causes  of  this  phenomenon,  we  should  be  obliged  to  go  as 
far  back  as  to  the  period  when  governments  and  in  fact  the 
various  tribes  became  gradually  nationalized,  to  the  discovery 
of  America  and  the  Reformation,  which,  by  the  secularization 
of  ecclesiastic  property  and  the  new  turn  which  it  gave  to  the 
European  mind  in  general,  imparted  to  industry  also  a  pecu- 
liar impulse.'  This  cannot  be  done  here  ;  but  it  will  appear 
evident  that  unless  we  again  direct  our  attention,  manfully 
and  steadily,  to  the  ethical  elements  of  the  state,  we  shall 
expose  society  to  the  greatest  dangers  in  many  of  its  most 
sacred  interests.  To  contribute  my  humble  share  to  this 
noble  object  I  have  undertaken  this  work.  I  am  not  writing 
a  book  of  political  casuistry.  The  casuist  may  settle  a  thou- 
sand cases  of  conflict,  and  the  next  complex  one  offered  by 
practical  life  may  be  as  perplexing  as  the  first.  Nor  have,  in 
all  probability,  any  works  of  casuistry,  however  ingenious  and 
dialectic  they  may  be,  essentially  contributed  to  guide  con- 
sciences in  the  path  of  duty,  while,  as  we  all  know,  not  a  few 
have,  by  their  very  ingenuity,  blunted  the  moral  edge,  instead 
of  sharpening  it.  If  I  succeed  in  disseminating  a  few  salutary 
principles,  in  pointing  out  some  dangers,  in  aiding  to  give 
moral  vigor  to  political  existence,  and,  above  all,  in  inspiring 

'  Political  Consequences  of  the  Reformation,  by  Ileeren,  u.  s.  The  work  of 
Adolphe  Blanqui,  Histoire  de  I'Economie  Politique  en  Europe,  Paris,  1838, 
contains  many  valuable  facts. 


396  POLITICAL  ETHICS. 

some  hearts  with  a  due  appreciation  of  the  task  we  have  to 
perform  as  citizens  and  as  members  of  our  race,  with  a  genuine 
love  of  liberty  and  a  conscientious  desire  to  maintain  it;  in 
convincing  any  that  the  prize  for  which  we  ought  to  strive, 
according  to  our  political  nature,  is  a  most  noble  one  ;  in 
arousing  a  few  from  political  apathy,  so  dangerous  to  every 
society,  and  in  moderating  others,  who  forget  in  their  ardor 
that  duties  are  the  necessary  concomitants  of  rights ;  if,  in 
short,  I  succeed  in  impressing  some  with  the  sacredness  of 
their  political  relations,  or  indeed  only  in  inciting  renewed 
attention  to  these  grave  subjects  and  in  warming  some  hearts 
with  true  patriotism,  I  shall  consider  my  object  fully  attained, 
and  believe  that  my  life  has  not  been  spent  entirely  in  vain,  in 
promoting  the  great  objects  of  that  period  in  which  my  lot 
has  been  cast. 

V.  Politics,  in  the  course  of  this  work,  has  been  compared 
to  architecture,  with  reference  to  the  necessary  attention  which 
we  must  pay  to  the  materials  at  our  disposal,  as  well  as  to  the 
object  which  we  have  in  view.  But  here  the  comparison  stops, 
for  the  component  parts  of  the  state  are  living  beings,  indi- 
vidual men;  and  whatever  well-intentioned  laws  or  institutions 
we  may  establish,  they  will  either  be  wholly  inoperative  or  be 
perverted  to  a  contrary  action  from  that  for  which  they  were 
intended,  if  they  do  not  find  a  corresponding  moral  sense  in 
the  greater  number  of  the  people.  Laws  may  do  much  to 
repress  evil,  vice,  or  crime :  indeed,  the  mere  fact  that  these 
are  repressed  or  punished,  as  soon  as  known,  is  not  only  an 
effect  of  the  moral  state  of  society,  but  confirms  and  diffuses 
it.  Yet  the  operation  of  the  laws  themselves  must  always 
first  depend  upon  a  corresponding  sense  of  duty  and  virtue 
in  the  people.  Dishonesty  may  be  rendered  punishable,  and 
will  be  punished  so  long  as  a  sense  of  honesty  is  diffused  in 
the  community;  but  this  honesty  itself  cannot  be  enacted. 
We  find,  therefore,  in  many  periods  of  general  degeneracy 
the  greatest  number  of  those  laws  which  strive  to  enforce  the 
primary  virtues,  upon  which  men  have  at  all  times  acknowl- 


POLITICAL  ETHICS.  397 

edged  the  state  essentially  to  rest ;  but  those  laws  alone  have 
never  been  able  to  arrest  the  downward  course  of  depravity 
when  once  it  had  really  become  general.  The  decline  of 
Greece  and  Rome  exemplifies  both  these  positions. 

No  individual  in  China  can  hold  a  magistracy  in  his  native 
province,  and  the  residence  of  officers  is  periodically  changed, 
to  prevent  the  growing  up  of  connections  between  them  and 
the  people,  of  bribery  and  insecurity  of  government ;  and, 
for  a  similar  reason,  the  Spanish  judge  in  the  colonies — I  do 
not  know  what  law  exists  respecting  this  point  in  Spain  itself 
—  is  prohibited  from  marrying  in  the  place  of  his  appoint- 
ment ;  yet  the  government  is  perhaps  nowhere  less  powerful 
and  more  insecure,  nor  are  bribes  more  the  order  of  the  day, 
than  in  the  first  country,  nor  is  the  administration  of  justice 
more  corrupt  in  any  country  than  in  several  colonies  of  the 
latter.  If  jury,  judge,  and  witness  falter  in  their  duty,  no 
Russell  can  be  saved.  This  is  a  truth  so  simple  that  we 
should  hardly  expect  it  ever  to  have  escaped  the  mind  of 
legislators ;  yet  all  codes  of  former  times  are  filled  with  laws 
which  proclaim  what  cannot  be  ordained,  or  extend  over  so 
purely  private  matters  as  to  resist  all  demands  or  ordinances 
from  without.  There  are  laws  in  those  codes  which  ordain 
that  the  subject  shall  love  the  king;  and  the  Spanish  laws 
prohibit  "crying  and  other  immoderate  grief  for  the  defunct,"' 
while  they  decree  dreadful  punishments  for  "  erring,  and  not 
believing  what  the  holy  church  holds  and  teaches." 

VI.  Nothing  would  be  farther  from  me  than  the  intention 
of  conveying  an  idea  that  wise  laws  are  unimportant.  They 
are  all-important :  they  support,  aid,  check,  elevate,  cultivate, 
and  perpetuate.  Good  laws  are  the  best  legacy  which  one 
generation  can  leave  to  another;  the  greatest  blessing  of  a 
community  is  a  long-continued  series  of  wise  and  sound  laws. 
We  have  but  to  look  at  such  a  law  as  enacts  a  general  school 


'  "  Ninguno  haga  llantos,  ni  otros  duelos  inmoderados  por  los  defuntos,  cs- 
pecialmente  desfiguiando  y  rasgando  la  cara,"  etc.  Extracto  de  la  Novlsima 
Recopilacion  de  las  Leyes  de  Espana,  vol.  vii.,  Madrid,  1815,  lib.  i.  titulo  i,  9. 


398  POLITICAL  ETHICS. 

system  :  still,  the  first  fulcrum  on  which  they  lean,  so  that 
they  can  operate,  is  the  sound  state  of  the  community — a  fact 
which  the  ancients  well  knew  and  repeatedly  mentioned. 
Without  general  morality,  that  is,  good  customs,  there  can 
be  no  sound  commonwealth;  nor  can  there  be  general  with- 
out private  morality  ;  but  private  morality  is  best  preserved 
where  it  has  grown  into  good  custom.  "  Custom,"  says 
Bacon,  "  is  the  chief  magistrate  of  man's  life;  men  should, 
therefore,  endeavor  by  all  means  to  obtain  good  customs." 

It  is  evident,  therefore,  that  in  this  point  of  view  every 
virtuous  disposition,  morality  in  all  its  manifestations,  is  of 
elementary  importance  for  the  well-being  of  the  state.  But 
there  are  certain  virtues,  as  well  as  vices,  which  are  of  pecu- 
liar importance  to  the  state,  because  they  either  prompt  more 
frequently  to  public  acts,  or  come  more  often  than  others  into 
play  in  political  life.  Of  these  I  propose  to  say  a  few  words 
before  I  discuss  some  of  the  most  important  situations  in 
which  the  citizen  is  called  upon  conscientiously  to  act,  although 
not  guided  by  any  law. 

Before  I  close  this  section  I  would  refer  once  more  to  the 
remarks  which  were  made  in  the  first  part'  on  the  fact  that 
private  virtues  may  exist  without  a  sufficient  attention  to 
public  ones.  Indeed,  it  has  not  been  maintained,  in  the  above 
remarks,  that  private  morality  alone,  be  it  ever  so  extensive, 
insures  public  welfare.  The  government  of  a  people  may  for 
a  long  time  have  so  effectually  acted  upon  the  principle  of 
interference,  and  may  have  smothered  so  entirely  all  public 
spirit,  public  interest,  and  public  activity  in  the  people,  that 
the  State  may  sink  despite  all  morality,  and  when  a  time 
of  danger  arrives  the  state  may  break  down  like  an  under- 
mined fabric.  I  do  not  believe  that  any  one  will  charge  the 
Prussian  people,  as  they  were  before  the  battle  at  Jena,  with 
general  depravity.  Yet  the  state  crumbled  rapidly  into  pieces 
after  that  battle  had  been  lost  —  more  easily  than  any  state 
ever  could  have  done  in  which  the  people  at  large  acted  vigor- 

'  Chapter  v. 


POLITICAL  ETHICS. 


399 


ously  with  the  gov^ernment,  whatever  the  final  issue  of  the 
war  might  be.  This  same  epoch,  however,  furnishes  us  hke- 
wise  with  an  example  how  vigorous  a  support  politics  derives 
from  the  good  morals  of  a  people,  and  how  rapid  may  be  the 
growth  of  public  spirit,  if  sown  upon  them.  Had  the  Prus- 
sians been  a  degenerate  race,  soiled  with  vice,  meanness,  and 
crime,  would  they  have  gathered  national  strength  even  under 
the  iron  dominion  of  a  conqueror,  which  weighed  most  heavily 
upon  them,  and  would  they  have  risen,  small  and  shorn  as 
their  country  and  means  were,  so  successfully  against  so  power- 
ful a  foe?  The  rise  of  Prussia  in  1813,  with  the  measures 
which  prepared  it,  and  the  most  strenuous  national  exertion 
to  expel  the  conquerors,  shortly  after  that  country  had  been 
dismembered,  forms  an  instance  of  great  interest  in  the  sphere 
of  political  ethics. 

Private  morality  in  free  countries,  however,  will  go  very  far 
to  insure  public  success  :  yet  even  here  we  must  not  forget 
that  moral  rectitude  alone  cannot  cause  any  state  to  flourish; 
good  counsel  is  likewise  necessary.  Laws  must  not  only  be 
made  by  well-meaning  people,  but  they  must  be  wise  laws; 
and  while  the  moral  tone  of  society  is  of  primary  importance 
in  free  countries,  prudence  and  sound  counsel  in  the  statesman 
or  law-maker  are  not  less  so.  For  wise  laws  must  be  made 
with  reference  to  the  citizens  themselves,  the  period  they  live 
in,  and  the  neighbors  who  surround  them. 

On  the  other  hand,  there  have  been  distinguished  writers 
on  subjects  of  politics,  who  seem  to  have  considered  good 
laws  and  wise  institutions  as  the  first  foundation  of  political 
success,  and  as  those  agents  by  which  general  good  conduct 
is  first  engendered,  or  which  have  secured  success  to  many 
states,  although  private  virtue  existed  only  in  a  very  limited 
extent.  When  power  was  mistaken  for  government,  and  gov- 
ernment for  state,  it  was  but  natural  that  increase  of  power, 
brilliant  external  success,  conquest,  or  other  aggrandizement 
should  at  times  have  been  taken  as  a  sufficient  index  of  po- 
litical success  ;  yet  even  then  it  was  frequently  not  considered 
whether  degradation  and  ruin  followed  this  very  success.    Or, 


400  POLITICAL  ETHICS. 

the  standard  of  judgment  has  been  a  certain  preconceived 
index  of  good  government,  for  instance  a  certain  division  of 
power.  Nor  has  sufficient  attention  been  paid  to  the  fact  that 
frequently  the  good  effect  of  former  better  periods  is  felt  in 
later  worse  ones,  yet  only  for  a  time,  because  the  degenerate 
state  of  the  latter  is  unable  to  perpetuate  them. 

Hume  seems  to  me  to  have  fallen  into  this  latter  error  when 
he  says,  "  The  ages  of  the  greatest  public  spirit  are  not  always 
most  eminent  for  private  virtue.  Good  laws  may  beget  order 
and  moderation  in  the  government,  where  the  manners  and 
customs  have  instilled  little  humanity  or  justice  into  the  tem- 
pers of  men.  The  most  illustrious  period  of  the  Roman  history, 
considered  in  a  political  view,  is  that  between  the  beginning 
of  the  first  and  end  of  the  last  Punic  war;  the  due  balance 
between  the  nobility  and  people  being  then  fixed  by  the  con- 
tests of  the  tribunes,  and  not  being  yet  lost  by  the  extent  of 
conquests.  Yet  at  this  very  time  the  horrid  practice  of  poi- 
soning was  so  common  that  during  part  of  the  season  a 
praetor  punished  capitally  for  this  crime  above  three  thousand 
persons  in  a  part  of  Italy."  '  I  think  that  if  the  history  of  any 
state  teaches  in  bold  examples  the  political  value  of  virtue 
and  the  political  misery  following  upon  depravity,  in  short, 
the  almost  constant  reciprocal  action  of  private  and  public 
virtue  in  free  states,  it  is  the  history  of  Rome.  Take  those 
virtues  which  form  the  common  stock  of  man's  morality — 
justice,  honesty,  and  a  pure  family  life — and  say  whether  a 
state  can  lastingly  succeed  without  them  ;  whether  they  form 
not  the  very  sap  which  gives  soundness  to  the  whole  body 
politic.  One  who  knew  well  the  operation  and  effect  of  many 
political  elements,  both  by  his  station  in  life  and  because  he 
lived  in  a  period  which  followed  a  time  of  depravity  in  the 
upper  classes  equalled  only  by  the  vices  of  a  veiy  itw  other 
corrupt  periods, — Napoleon, — said,   "  Public  morals  are  the 


'  Hume's  Essay,  that  Politics  may  be  reduced  to  a  Science — Essay  iii.  vol. 
iii.  of  his  Philosophical  Works,  Edinburgh,  1826.  [Two  thousand  is  the  num- 
ber given  by  Livy,  xxxiv.  41,  on  the  authority  of  Valerius  Antias,  whom  he  him- 
self distrusts  :   comp.  iii.  8.] 


POLITICAL   ETHICS.  401 

natural  complement  of  all  laws ;  they  of  themselves  form  an 
entire  code." ' 


VII.  Of  all  the  virtues  peculiarly  important  in  politics,  the 
chief  place  must  be  assigned  to  justice  and  fortitude  or  per- 
severance ;  for  honesty  and  moderation,  without  which  no 
state  indeed  can  last  or  flourish,  maybe  comprised  within  the 
first,  if  we  take  it  in  its  widest  sense;  yet  they  deserve  par- 
ticular mention.  Justice  and  Fortitude  may  well  be  called 
the  two  elementary  virtues  of  every  citizen,  no  less  than  of 
the  statesman  in  particular. 

Justice — if  we  designate  by  this  sacred  word  that  virtue 
which  is  the  constant  will,  desire,  and  readiness  faithfully  to 
give  every  one  his  due,  and  if  we  understand  by  due  not 
merely  that  to  which  every  one  has  a  right  by  the  positive 
and  enacted  laws  of  the  state,  but  that  which  is  his  as  man, 
as  individual,  as  moral  being,  and  as  our  neighbor — is  that 
virtue  which  is  embodied  in  the  great  practical  moral  law 
that  we  should  do  even  so  to  others  as  we  would  that  they 
should  do  to  us.  Justice  was  early  acknowledged  to  be 
the  supreme  virtue,  and  often  called  by  the  ancients  the 
only  virtue,  including  all  others  ;  ^  it  is  that  virtue  or  ethic 
disposition  which  prompts  man  to  acknowledge  others  as 
his  equals,  and  thus  becomes,  as  we  have  seen,  the  very 
foundation  of  the  state,  and  remains  at  once  its  cement  and 


»  Las  Cases,  Memorial  de  Sainte-Heldne,  vol.  vii.  p.  123,  Paris,  1824. 

2 'Ev  (5e  Ji«a«)aw7?  avlXTi36-nv  Tzua' upe-f)  'an. — "Justice  comprises  all  virtue." 
(Theognis  of  Megara,  one  of  the  Gnomic  poets.)  "  Justitia,  cui  sunt  adjunctae 
pietas,  bonitas,  liberalitas,  benignitas,  comitas,  quasque  sunt  generis  ejusdem." 
(Cic,  de  Fin.,v.  23,  65.)  Thus  diKaioq,  "just,"  is  used  in  the  New  Testament  to 
denote  the  highest  degree  of  virtue  and  purity,  and  the  word  righteous  (from 
Right),  by  which  the  original  S'lKawg  is  rendered  in  English,  with  its  comprehen- 
sive meaning,  according  to  which  "  it  includes  all  we  call  justice,  honesty,  and 
virtue,  with  holy  affections,  in  short  is  true  religion,"  points  to  the  same  connec- 
tion of  ideas,  and  in  the  German  Bible  the  simple  word  gerecht,  that  is,  just,  is 
used  where  in  English  righteous  stands. 

The  Hindoo  Ordinances  of  Menu  say,  "  The  only  friend  who  follows  men 
even  after  death  is  justice:  all  others  are  extinct  with  the  body."  Translation 
by  Sir  William  Jones,  London,  1799,  vol.  iii.  p.  276. 

26 


402 


FOLITICAL   ETHICS. 


energy;  that  virtue  which  above  all  others  establishes  confi- 
dence, peace,  and  righteousness  among  men,  individually  and 
collectively,  as  states  or  nations,  and  comprehends  fairness, 
equity,  and  even  clemency.  For  if  in  matters  of  law  we  dis- 
tinguish the  latter  from  justice,  if  we  establish  courts  of  equity 
in  contradistinction  to  courts  of  law,  or  give  to  the  chief 
magistrate  the  privilege  of  tempering  justice  with  mercy,  we 
mean  in  this  case  by  justice  the  awarding  of  every  man's  due 
according  to  the  established  laws  of  the  land,  which  the  jural 
character  of  the  state  requires  to  be  the  rules  by  which  the 
actions  of  its  members  should  be  judged.  But  as  we  are  con- 
scious that  laws  cannot  be  so  perfectly  framed  as  to  meet 
every  possible  complex  case,  and  that,  framed  in  human  lan- 
guage as  they  must  be,  their  exact  application  must  some- 
times defeat  their  own  ultimate  end,  namely,  true  justice,  we 
vest  somewhere  the  power  to  determine  causes  "  in  which 
reason  and  justice  require  that  the  rigorous  application  of  the 
rules  of  common  law  should  be  mitigated,"  or  to  release  the 
offender  from  punishment  in  cases  in  which  the  law,  accord- 
ing to  all  the  circumstances,  operates  harshly.  Upon  this 
ground  alone  can  the  privilege  of  pardoning  be  maintained 
with  any  reasonableness,  for  it  cannot  have  been  bestowed  for 
the  purpose  of  screening  real  guilt,  according  to  caprice, 
weakness,  or  partiality.  It  is  therefore  essential  justice  only 
which  in  these  cases  is  made  to  supersede  apparoit  justice. 
There  may  be  cases  indeed,  by  way  of  exception,  in  which 
par  'on  is  granted  wholly  from  generosity  or  on  prudential 
grounds ;  for  instance,  when  an  offence  against  the  chief 
magistrate  personally  is  remitted. 

VIII.  That  justice,  if  it  means  the  unswerving  and  incor- 
ruptible meting  out  of  every  man's  due,  the  protection  of 
right,  is  the  most  indispensable  virtue  with  regard  to  the 
state  as  the  strictly  jural  society,  and  is  in  fact  its  very  essence, 
has  been  sufficiently  dwelt  upon  in  former  chapters,  where 
in  fact  one  of  my  chief  endeavors  has  been  to  present  it  in 
as  strong  a  light  as  possible.     "  There  is  but  one  means  to 


POLITICAL  ETHICS. 


403 


render  a  government  firm ;  this  is  Justice,"  said  Carnot,  when 
the  question  was  debated  whether  the  imperial  crown  should 
be  offered  to  Bonaparte  in  order  to  render  the  government 
stable.  And  Timur,  the  mighty  Tartar,  even  he  said,  when 
asked  for  advice  by  a  fellow-emperor,  "  Sovereignty  (the  prin- 
cipate)  is  like  a  tent,  the  poles  of  which  should  be  justice,  the 
ropes  equity,  and  the  pins  philanthropy ;  in  order  that  it  may 
stand  firm  against  the  blasts  of  adversity." '  A  great  truth  in 
the  peculiar  Tartar  dress  of  the  roving  nomad. 

But  justice  is  not  only,  thus  applied  to  positive  laws,  the 
main  stay  of  the  state,  it  is  of  like  importance  in  all  possible 
relations  in  which  the  citizens  can  be  placed,  individually  and 
collectively.  Nothing,  as  every  reader  well  knows,  gives  to 
a  man  so  stanch  and  solid  a  character  as  the  conviction  of 
the  community  that  "  he  wishes  to  do  nothing  but  what  is 
right ;"  nor  does  anything  give  so  moral  a  tone  and  conse- 
quently so  vigorous  a  support  to  international  transactions  as 
the  knowledge  that  one  of  the  parties  "  demands  nothing  but 
what  is  right,  ahd  will  submit  to  nothing  that  is  wrong." 
"  Reputation  is  great  power,"  as  Bolingbroke  said,'  perhaps 
the  best  authority,  because  he  found  the  truth  by  experiencing 
the  reverse  from  contrary  causes :  yet  one  of  the  chief  ingre- 
dients of  a  well-established  reputation,  both  for  individuals 
and  for  states,  is  habitual,  plain,  thorough  justice.  Civil  and 
social  transactions  and  intercourse  must,  in  a  great  many  in- 
stances, ultimately  depend  upon  good  faith ;  that  is,  essential 
justice,  in  its  most  comprehensive  sense.  Laws  may  be 
wrested,  contracts  evaded,  the  most  solemn  terms  may  be 
broken,  if  we  abandon  justice  and  have  a  mind  to  interpret 
our  enrrasrements  or  the  ethic  demands  of  duty  themselves  in 
bad  faith.  That  community  in  which  injustice  and  bad  faith 
are  habitual  cannot  possibly  support  civil  liberty.  This  is  so 
true  and  evident  that  we  may  well  dispense  with  any  farther 


'  Stewart's  Translation  of  the  Memoirs  of  Timur,  publislied  by  the  Oriental 
Translation  Fund,  p.  56. 

»  Bolingbroke  to  Windham,  Oct.  13,  1737,— Correspondence,  vol.  iii.  p.  494- 


404  POLITICAL  ETHICS. 

discussion  of  the  subject ;  but  it  will  be  necessary  to  inquire 
into  some  cases  in  which  we  have  to  guard  ourselves  especially 
against  injustice  and  an  abandonment  of  the  primary  principle 
of  right  and  equity. 

I  believe  the  most  important  of  these  cases  are  those  in 
which  we  enjoy  superior  power,  or  where  no  authority  above 
us  can  make  us  responsible  for  our  acts,  and  those  in  which 
passion  or  eagerness  to  obtain  an  advantage  or  defend  rights 
blinds  us.  I  have  spoken  already  of  the  love  of  power  and 
the  universal  feeling  of  offence  at  opposition,  however  loyal. 
Men,  therefore,  who  enjoy  power,  of  whatever  sort,  ought 
never  to  forget  that  they  are  magistrates,  which  means  agents, 
servants  of  the  state  ;  this  superior  power  which  they  enjoy 
over  their  equals  has  the  sense  and  meaning  only  that  they 
shall  use  it  to  serve  the  state.  For  what  other  reason  should 
they  be  singled  out  from  the  mass  ?  The  object  as  well  as 
foundation  of  the  state,  however,  is  justice.  But  when  we 
have  power  for  which  we  are  not,  strictly  speaking,  respon- 
sible, or  not  at  all  so,  we  are  the  more  bound  to  adhere  to  the 
only  law  that  remains,  the  moral  obligation  which  demands 
justice. 

It  is  well  known  that  it  is  never  an  easy  matter  to  obtam 
the  satisfaction  of  large  claims,  however  just,  from  those  who 
have  the  power  to  refuse  it  or  not,  as  they  please ;  from  legis- 
lative bodies  not  more  easy  than  from  princes.  Ferdinand 
the  Catholic  declined  paying  -what  was  due  to  Columbus, 
according  to  solemn  agreement,  because  the  portion  of  the 
revenue  due  to  the  navigator  was  large,  since  the  revenues 
themselves  had  become  large ;  and  some  extensive  claims 
upon  the  United  States,  due  since  the  Revolution,  received 
but  late  and  tardy  justice.  How  unjust  Rome  showed  herself 
to  her  dependents !  A  prince,  knowing  that  a  brilliant  act 
of  justice  and  disinterestedness  will  redound  to  his  personal 
honor,  finds,  not  unfrequently,  a  motive  to  do  right  in  this 
adventitious  circumstance;  while  for  the  single  member  of  an 
assembly  no  such  personal  motive  exists.  He  is  therefore 
still  more  bound  on  ethic  grounds  to  obey  the  law  of  justice, 


POLITICAL  ETHICS. 


405 


and  his  doing  right  is  the  more  disinterested.  Let,  however, 
all  citizens  rest  assured  that,  whatever  the  momentary  disad- 
vantage may  appear  to  be,  there  is  happily  nothing  which  is 
even  on  the  ground  of  mere  prudence  so  advisable  as  steady 
justice  and  fairness  in  all  matters.  Nothing  creates  such  con- 
fidence and  imparts  such  vigor  to  all  parts  of  the  state  as 
doing  right.  "  Oh  qu'il  est  dangereux  de  mal  faire  pour  en 
esperer  du  bien,"  wrote  Elizabeth  to  Henry  IV.  of  France.' 
By  nothing,  it  is  well  known,  has  the  Prussian  government 
succeeded  sooner  in  attaching  the  new  or  reconquered  prov- 
inces to  herself  than  by  her  scrupulous  fulfilment  of  even  very 
onerous  engagements  made  by  the  preceding  and  hostile  gov- 
ernments. Credit,  that  great  agent  of  governments  as  well  as 
private  transactions  in  modern  times,  and  which,  however 
frequently  and  greatly  abused,  must  nevertheless  be  considered 
as  one  of  the  most  striking  effects  of  civilization  in  the  Eu- 
ropean race,  on  what  is  it  founded,  if  not  on  the  two  elements 
of  capability  and  of  justice?  Pecuniary  capability  alone  can 
never  create  it  without  corresponding  confidence  in  the  justice 
of  the  borrower. 

Yet,  though  none  of  these  considerations  existed,  justice  has 
its  own  independent  worth,  and  the  most  fundamental  maxim 
of  all  politics  as  well  as  of  civil  liberty  is  the  well-known 
adage,  "  Fiat  justitia  et  pereat  mundus."  Aristides  left  a  great 
national  legacy  to  his  fellow-citizens  by  his  name  of  the  Just, 
and  by  his  opinion,  repeated  from  mouth  to  mouth,  when 
Themistocles,  by  their  order,  had  communicated  to  him  his 
secret  plan  of  burning  the  confederate  fleet,  "  that  the  enter- 
prise which  Themistocles  proposed  was  indeed  the  most  ad- 
vantageous in  the  world,  but  at  the  same  time  very  unjust ;"  ' 
whereupon  the  Athenians  commanded  him  to  lay  aside  all 
thoughts  of  it.  As  justice  is  the  great  support  of  the  state,  so 
is  injustice  its  ruin;  not  only  corrupt  administration  of  justice, 

»  Raumer,  History  of  the  Sixteenth  and  Seventeenth  Centuries,  illustrated  by 
Original  Documents,  translated  from  the  German,  London,  1835,  vol.  i.  p.  383.  Not 
to  be  confounded  with  Raumer's  History  of  Europe,  likewise  quoted  in  this  work. 

"  Plutarch,  Themistocles. 


4o6  POLITICAL  ETHICS. 

but  every  act  of  undeserved  partiality  or  favoritism,  of  honors 
bestowed  unworthily  or  merits  requited  with  evil,  spreads  in 
the  state  like  a  poisonous  weed  and  extends  its  mischief 
incalculably  farther  than  merely  to  the  individual  or  his 
family. 

Justice,  thus  vitally  important  in  all  domestic  political 
affairs,  is  not  less  so  in  international.  Treaties  rest  essentially 
on  good  faith ;  for  there  is  no  superior  power  to  adjudge  be- 
tween the  parties  and  to  coerce  into  obedience.  As  inter- 
national treaties  generally  cover  a  large  sphere,  it  is  natural 
that  human  words  should,  in  most  cases,  be  found  not  suffi- 
ciently minute  to  exclude  all  faithless  interpretation.  There 
is  then  no  authority  which  can  direct  us  to  do  right,  except 
Justice  herself  in  our  hearts ;  while  we  may  confidently  rely 
upon  the  fact  that  nothing  gives  so  much  dignity  to  a  nation, 
and  consequently  so  much  facilitates  all  her  national  inter- 
course, secures  so  great  national  advantages,  and  extends 
benefit  to  all  her  citizens  abroad,  for  whatever  purpose  they 
may  travel,  in  pursuit  of  wealth,  knowledge,  or  pleasure,  as 
habitual  and  traditional  justice  in  international  affairs.  The 
international  transactions  of  Louis  XIV.  and  the  deplorable 
effects  to  which  the  spirit  led  with  which  they  were  carried 
on,  afford  an  impressive  instance  of  bad  faith  and  injustice; 
the  history  of  Isabella  the  Catholic  furnishes  a  striking  instance 
of  the  becalming  and  resuscitating  power  of  habitual  justice 
and  consequent  confidence  of  the  people;  and  that  of  England, 
the  most  instructive  illustration  of  the  immense  power  which 
results  from  a  faithful  discharge  of  the  engagements  made  by 
government,  and  a  universal  belief  in  the  justice  of  the  courts 
of  law. 

IX.  Justice,  which  demands  that  we  should  see  and  judge 
matters  not  only  from  our  point  of  view,  but  also  from  that 
of  others,  perhaps  of  our  adversaries  or  enemies,  is  on  this 
ground  also  the  most  difficult  virtue,  as  it  is  the  highest.  No 
phenomenon  in  the  moral  world,  or  indeed  in  the  political^ 
is  more  common  than  the  adoption  of  the  standard  of  that 


POLITICAL  ETHICS. 


407 


circle  in  which  we  move,  a  specific  standard  of  feeling,  taste, 
delicacy,  tenderness,  even  of  fairness,  justice,  or  candor,  honor, 
and  right,  and  a  disregard  of  that  of  others.  But  justice  on 
general  grounds,  as  well  as  in  political  spheres  in  particular, 
demands  that  we  should  divest  ourselves  as  much  as  possible 
of  these  distorting  views,  which  must  prevent  us  from  free 
and  correct  action.  There  is  nothing  so  dangerous  in  politics 
as  coteries,  on  account  of  this  standard  of  their  own,  and  their 
consequent  injustice  to  others.  The  history  of  most  revolu- 
tions proves  their  danger.  There  is  hardly  ever  a  body  of 
men  within  a  nation  who  know  so  little  of  it  as  a  court,  unless 
the  monarch  be  of  a  peculiarly  sagacious  and  penetrating  or 
free  and  elevated  mind,  gifted  with  the  rare  power  of  a  grasp- 
ing combination  and  the  genius  of  divination,  animated  as 
this  must  be  by  original  sympathy  with  the  people.  Parties, 
and  especially  party  coteries,  have  frequently  the  same  effect. 

X.  Nothing,  however,  is  so  apt  to  prevent  justice  in  us  as 
passion,  which  is  proverbially  blind.  As  to  party  passion,  I 
shall  recur  to  the  subject  when  I  shall  treat  of  Parties.  Here 
may  be  mentioned  only  that  there  are  many  persons  "  who 
have  no  action  except  they  are  animated  by  some  passion, 
which  makes  them  like  incense,  giving  its  perfume  only  when 
on  fire,"  a  "  constitution  dangerous  to  all  persons,  but  especi- 
ally to  kings,  who,  as  well  as  every  one  else,  must  act  by 
reason,"  as  Richelieu  adds  in  his  testament.  These  persons 
are  highly  dangerous  in  free  countries,  because  they  act  not 
only  blindly,  and  "  if  correctly  but  by  chance"  and  by  mere 
impulses,  which  rapidly  vanish;  but  they  communicate  their 
excitement  to  others,  and  prevent  truth  and  justice  in  a  larger 
circle.  Yet  these  unbridled  and  unmanly  characters  are  not 
the  only  ones  who  suffer  from  passion ;  nobler  men  have  to 
shun  it  likewise.  A  large  number  of  those  men  who  have 
performed  the  greatest  works  have  done  so  partly  in  conse- 
quence of  having  been  endowed  with  a  peculiarly  sensitive 
and  excitable  organization.  Without  it,  men  are  frequently 
incapable  of  that  impulse  and  enthusiasm  which  must  rouse 


408  POLITICAL  ETHICS. 

the  mind  and  inspire  it  for  great  and  morally  bold  tasks ; 
without  it  they  will  not  dare  or  undertake  those  things  which 
promise  neither  reward  nor  profit,  and  to  which  strict  duty 
does  not  bind  them.  But  this  very  sensitiveness  likewise 
exposes  such  characters  to  excited  feelings  more  than  the 
duller  part  of  the  community,  and  consequently,  when  excited, 
to  unjust  and  dangerous  actions.  Let  them  therefore  learn 
in  season  to  bridle  themselves  and  submit  to  calm  judgment, 
without  extinguishing  the  ardor  of  their  nature ;  for  they  are 
necessary  ingredients  in  a  good  community. 

In  whatever  light,  then,  we  may  view  justice,  privately^ 
publicly,  or  internationally,  it  is  all-important.  It  is  the  foun- 
dation of  character,  the  basis  of  power,  the  aegis  of  liberty,  the 
sole  support  of  self-respect ;  and  a  great  secret  of  the  art  of 
ruling,  which  many  indeed  believed  to  consist  in  a  continued 
series  of  coups  ifetat,  is  contained,  for  republics  as  well  as 
for  monarchies,  at  home  and  abroad,  in  the  two  brief  words, 
Be  Just. 

XI.  That  we  should  be  just  in  its  truest  and  widest  sense, 
in  all  our  dealings,  opinions,  and  judgments,  strictly  political 
or  not,  leads  us  at  once  to  the  consideration  of  an  important 
question :  Is  a  citizen  in  conscience  allowed  to  do  all  that  his 
laws  permit  ?  Not  a  it^  think  so,  although  in  many  cases 
the  theory  of  the  persons  is  worse  than  their  actions  really 
prove  them  to  be.  That  we  have  not  to  inquire  whether  a 
citizen  may  or  may  not  take  all  the  advantage  which,  in 
overreaching  the  laws  by  using  their  letter  contrary  to  their 
evident  spirit,  he  may  derive  from  cunning  or  fraud,  is  too 
evident.  The  fair  and  simple  question  is.  May  you  do  all  the 
laws  positively  allow  you  to  do,  and  all  that  they  do  not  pro- 
hibit? What  has  been  called  by  some  abiding  by  the  laws 
of  their  country  is  nothing  but  a  pretext  for  actions  of  whose 
depravity  they  are  conscious.  From  the  whole  view  which 
has  been  taken  of  the  state  in  previous  chapters,  it  appears 
clearly  that  those  who  pretend  to  consider  themselves  justified 
in  everything  which  the  law  does  not  prohibit  are  in  a  great 


POLITICAL  ETHICS. 


409 


error.'  The  state  does  not  supersede  morality  or  my  own 
conscience,  which  it  evidently  would  if  its  laws  were  my 
whole  code.  We  must  never  forget  that  laws  are  always 
addressed  to  men  whose  common  sense  and  moral  character 
are  presupposed  :  otherwise  it  would  be  impossible  to  draw  up 
any  laws,  and  useless  to  enact  them.  The  more  legitimate 
the  action  of  the  state,  the  more  it  confines  itself  to  those  sub- 
jects which  necessarily  require  general  interference  or  action, 
and  the  more  it  leaves  individual  action  to  itself.  There  are 
thousands  of  relations  of  the  highest  importance  which  the 
state  nevertheless  cannot  or  will  not  touch,  in  which  we  must 
act  for  ourselves.  The  state  remains,  as  has  so  frequently 
been  stated,  a  jural  society;  but  there  are  even  jural  relations 
which  it  is  impossible  for  the  state,  acting  as  it  does  by  laws, 
that  is,  general  rules,  to  treat  with  that  minuteness  or  delicacy 
which  nevertheless  their  essential  character  requires.  We 
have  seen  that  the  individual  is  by  no  means  absorbed  by  the 
state;  it  does  not  pretend  to  act,  feel,  think  for  us;  but 
this  would  undoubtedly  be  the  case  if  we  attached  a  moral 
meaning  to  our  actions  only  according  to  the  positive  laws  of 
the  state.  If  I  am  absolutely  allowed  to  do  all  that  the  laws 
of  my  country  allow,  and  I  thus  make  the  state  my  con- 
science, a  necessary  corollary  is  that  I  am  also  absolutely 
bound  to  do  all  that  they  demand.  How  then  with  nefarious 
laws  ?  Walter  Scott  tells  us  that  an  earl  Patrick  on  the  Zet- 
land Islands   made  laws   against  anybody's   helping  vessels 


I  *  The  error,  then,  is  : 

1.  That  we  do  not  acknowledge  that  there  may  be  bad  and  even  wicked  laws. 

2.  Til  at  we  reason  as  if  the  state  with  its  laws  were  made  to  be  a  substitute  for 
conscience  and  morality,  while  in  truth  it  is  but  one  of  the  edifices  built  upon 
them. 

Now  let  a  man  adopt  the  rule  that  he  is  permitted  to  do  all  that  the  laws 
do  not  prohibit,  and  then  add  Blackstone's  theory  that  the  punishment  is  an 
equivalent  for  the  offence,  which  therefore  we  may  commit  provided  we  are 
willing  to  abide  the  consequences,  and  it  is  seen  at  once  that  we  arrive  at  this 
conclusion  : 

You  can  do  anything  you  choose,  provided  you  can  prevent  it  from  being  dis- 
covered,  or,  if  it  be  discovered,  take  the  consequences— a  diabolical  rule,  fit  for 
a  set  of  pirates,  but  not  for  honest  men. 


410  POLITICAL  ETHICS. 

likely  to  be  wrecked  on  the  breakers,  for  no  other  reason  than 
that  iniquitous  desire  which  we  find  to  a  very  late  period  in 
most  inhabitants  of  remote  and  dangerous  coasts.'  The  Aus- 
trian government  permitted  to  a  recent  date  the  reprint  of 
any  German  work  although  unauthorized  by  the  author  or 
owner.  Thus  piratical  cheap  editions  were  imported  from  the 
imperial  dominions  into  the  other  parts  of  Germany,  to  the 
injury,  and  sometimes  the  ruin,  of  the  lawful  owners  of  the 
respective  works.  Was  it  right  to  make  use  of  this  law  of 
Austria  ?  Charles  Gustavus  of  Sweden,  when  he  was  in  a 
highly  critical  situation  in  Poland,  in  the  year  1656,  ordered 
that  every  Polish  nobleman  of  his  party  who  should  kill 
one  on  the  Polish  side  should  have  half  of  his  fortune ;  every 
peasant  who  should  do  the  same  should  be  emancipated  and 
have  the  use  of  the  slain  nobleman's  estate  for  six  years. 
Was  an  individual,  even  though  he  sided  conscientiously 
with  the  monarch,  therefore  at  liberty  to  commit  murder  ? 

There  is  no  father  who  would  assert  that  he  feels  at  liberty 
to  do  in  his  family  all  that  the  laws  allow  or  cannot  reach ; 
and  why  is  the  moral  obligation  in  the  family  greater  than 
that  towards  fellow-citizens  ?  Most  assuredly  God  will  not 
judge  men  by  the  civil  code,  orthe  common  law  of  England, 
or  the  code  of  France,  but  by  that  code  from  which  all  codes 
originally  flow,  and  which  is  "  the  law  written  in  their  hearts," 
their  conscience.  If  this  first  of  all  codes  is  disregarded,  its 
emanations,  the  positive  laws,  must  in  every  society  soon  lose 


*  The  Pirate. — Until  within  recent  times  '•'  a  blessed  stranding"  was  prayed  for 
in  some  churches  on  tlie  island  of  Riigen  in  the  Baltic.  The  people  compared 
it  to  the  innocent  prayer  for  "  daily  bread"  of  a  physician,  and  interpreted  their 
own  prayer  as  a  request  that,  if  there  was  any  wreck  according  to  the  will  of  God, 
much  of  it  might  be  saved  and  come  into  their  hands.  Nothing,  I  believe,  proves 
moi^e  strikingly  how  society  alone  humanizes  man  than  the  fact  that  in  all 
countries,  among  inhabitants  of  the  sea-coast,  remote  from  society  and  near 
rocks  and  breakers,  are  found  exceedingly  dangerous  people,  who  decoy  vessels 
or  destroy  the  crew,  etc.,  and  the  remark  which  Thucydides  makes  respecting 
them  applies  to  many  countries  in  our  own  times.  The  discovery  of  the  so-called 
"  land-pirates"  on  the  New  Jersey  shore,  a  few  years  ago,  and  their  crime  of 
enticing  vessels  by  false  lights,  are  in  the  remembrance  of  every  one. 


POLITICAL  ETHICS.  4H 

their  efficacy.  If  we  are  allowed  to  do  all  the  positive  law 
permits,  one  or  the  other  thing  must  necessarily  follow : 
either  the  laws  continue  to  touch  comparatively  few  relations 
and  things,  in  which  case  lawlessness  must  be  the  conse- 
quence ;  or  the  positive  laws  embrace  all  relations,  interfere 
with  everything,  and  abject  servility  must  be  the  conse- 
quence. 

In  countries  in  which  the  law  is  habitually  and  tradition- 
ally considered  as  the  supreme  ruler,  without  which,  as  we 
have  seen,  no  civil  liberty  can  exist,  the  citizens  are  not  un- 
frequently  exposed  by  their  very  reverence  for  the  law  to 
extend  this  positive  rule  too  far,  which  nevertheless  accord- 
ing to  the  very  essence  of  the  state  applies  to  outward  actions 
only,  and  to  forget  that  there  remain  many  actions  even  of 
political  importance  which  cannot  be  judged  of  by  laws. 
Thus  it  is  found  sometimes  that  the  mere  verdict  of  not  guilty 
influences  persons  who  judge  of  the  individual  in  question,  as 
if  a  verdict  in  court  were  meant  to  be  an  absolute  or  moral 
one.  We  all  know  that  there  is  a  difference  between  an 
honorable  acquittal  and  one  produced  only  by  rules  of  law, 
which  are  nevertheless  necessary  and  protective  and  which 
may  leave  an  indelible  stamp  of  guilt  upon  the  acquitted 
person.  Burr  was  acquitted,  but  few  believed  him  innocent. 
That  justice  in  its  true  sense,  on  the  other  hand,  forbids  us  to 
judge  by  mere  suspicion  and  appearance,  is  evident.  Pre- 
tending to  regulate  all  our  actions  by  the  law  only  shows  a 
supposition  of  perfection  in  the  laws, — which  they  never  can 
acquire,  partly  because  they  are  the  work  of  man,  partly 
because  they  are  gradually  and  not  in  all  parts  evenly  de- 
veloped— and  a  resolution  to  exclude  from  our  actions  all 
those  noble  principles  which  cannot  be  demanded,  and  from 
which  nevertheless  the  purest  actions  proceed. 


CHAPTER    II. 

Perseverance. — Justus  et  tenax. — Necessity  and  great  Effects  of  Perseverance. 
— To  persevere,  our  Purpose  ought  to  be  good,  the  Means  adapted  to  the  Pur- 
pose and  the  Purpose  to  the  Means;  the  Means  concentrated. — Repeated 
Action  may  supply  Power;  undaunted  Perseverance  may  finally  decide  by  a 
Trifle. — Fortitude. — Alarmists. — Excitement  and  Injustice. — Rabies  civica. — 
Calmness  of  Soul. — Political  Fretfulness. — Great  Souls  are  calm. — Peevish- 
ness.— Political  Grumblers  (Frondeurs). — Chief  Points  respecting  Firmness. 
— Consistency. — Inconsistency. — Obstinacy. 

XII.  The  graceful  spirit  of  the  Greeks  attributed  even  to 
the  serious  historian  the  dedication  of  each  part  of  his  work 
to  one  of  the  muses.  If  I  could  have  graced  the  divisions  of 
this  book  with  the  names  of  great  and  good  men,  in  whose 
contemplation  the  mind  gathers  strength  and  reassurance,  I 
should  have  inscribed  this  division,  in  which  I  purpose  to 
treat  of  Perseverance,  with  the  name  of  Columbus.  Ponder 
his  life,  weigh  his  motives,  examine  his  strength  of  mind  and 
tenacity  of  purpose,  unsubdued  by  sneer,  haughtines-s  or 
clamor,  disappointment  or  difficulty,  unshaken  by  storm, 
rebellion,  treachery,  or  ingratitude ;  strong  from  his  first 
obscure  setting  out  in  his  great  career,  in  the  hours  of  peril, 
in  command  or  chains,  in  wealth  and  in  poverty,  to  the  last 
moment  of  his  illustrious  life :  and  you  will  have  a  better 
commentary,  and  a  real  and  more  inspiring  example,  than  any 
abstract  words  can  give,  of  those  impressive  lines  in  which 
the  ancient  poet  has  embodied  the  two  substantial  virtues  of 
every  citizen  and  of  every  man  who  means  to  do  what  is 
right  and  not  to  leave  this  life  without  bequeathing  some 
good  performed  upon  his  fellow-men : 

"  Justum  et  tenacem  propositi  virum 
Non  civium  ardor  prava  jubentium, 
Non  vultus  instantis  tyranni 

Mente  quatit  solida,  neque  Auster 
412 


POLITICAL  ETHICS.  413 

"  Dux  inquieti  turbidus  Adrire, 
Nee  fulminantis  magna  Jovis  manus  : 
Sic  fractus  illabatur  orbis, 

Impavidum  ferient  ruinse;"  ' — 

words  which  have  been  hallowed  since  the  brave  Corne- 
lius de  Witt  breathed  them  on  the  rack,  and  expressed  his 
firmness  against  an  impassioned  prince  and  an  infuriated 
populace,  who  would  not  be  appeased  but  by  the  pure  blood 
of  the  patriotic  hearts  of  him  and  his  great  brother  John 
de  Witt.^ 

XIII.  Perseverance,  firmness,  fortitude,  constancy,  courage 
and  calmness,  manfulness,  dignity  of  mind,  self-esteem,  and 
consistency,  are  each  the  same  in  principle,  and  only  different 
terms  applied  to  a  different  degree  of  intensity  or  different 
relations  and  circumstances,  or  they  stand  to  each  other  in 
the  relation  of  principle  and  application,  or,  lastly,  they  are 
very  nearly  akin  to  one  another,  and  one  can  hardly  be 
imagined  to  exist  without  the  other. 

If  we  have  made  up  our  mind  to  be  just,  that  is,  to  do  what 
is  right  ("  ex  aequo  et  bono  jus  constat,  quod  ad  veritatem  et 
ad  utilitatem  communem  videtur  pertinere"),^  we  cannot  ad- 
here to  our  purpose  without  perseverance.  Every  purpose 
and  object  in  life,  through  all  spheres  of  action,  require  their 
proportionate  degree  of  perseverance :  the  tillage  of  the 
ground    requires    its   degree    of  perseverance,    in    the    same 


'  Horace,  Carm.,  lib.  iii.  3. 

*  This  stern  page  of  histoiy  contains  one  of  those  periods  in  the  annals  of 
mankind  which  deserve  the  manly  and  serious  consideration  of  every  true  lover 
of  his  kind.  Nowhere,  perhaps,  are  the  fearful  power  of  ill-founded  and  sense- 
less rumor,  the  exasperation  of  the  multitude  even  against  the  wisest  and  most 
unsullied  patriots,  and  the  fortitude  of  the  just  patriot,  exemplified  in  a  bolder 
instance  than  in  this  case.  History  has  done  ample  justice  to  the  characters  and 
great  statesmanship  of  the  brothers  John  and  Cornelius  de  Witt,  and  the  verdict 
of  not  guilty  has  long  been  pronounced  by  posterity,  despite  the  nefarious  at- 
tempts of  some  writers.  The  best  sources  respecting  the  murder  of  these  patriots 
are  to  be  found  in  Van  Campen,  History  of  the  Netherlands,  Hamburg,  1833 
(in  Heeren  and  Uckert's  series  in  German),  vol.  ii.  p.  247. 

3  Ad  Herenn. 


414 


POLITICAL  ETHICS. 


manner  as  the  study  of  a  science,  the  diffusion  of  a  great 
truth  or  other  benefit  to  mankind,  the  carrying  of  a  great 
measure  or  the  delivery  of  a  country  from  foes,  foreign  or 
domestic,  do  in  their  respective  spheres ;  and  the  greater  the 
object  is  which  we  feel  in  conscience  bound  to  obtain,  the 
greater  is  likewise  the  effort  necessary  for  its  attainment. 
To  break  a  road  over  the  high  Alps,  or  pave  it  through  mo- 
rasses, requires  greater  labor  than  the  laying  out  of  a  path 
over  even  ground ;  and  to  shed  the  light  of  truth  in  ages  of 
darkness  calls  for  stronger  minds  and  firmer  souls  than  the 
application  of  well-established  truths  to  some  single  case. 
This  no  one  ever  denied ;  yet  in  practice  we  are  apt  to  forget 
it.  Difficulties,  derision,  clamor,  defeats,  or  the  despair  of 
receiving  due  acknowledgment,  are  apt  to  dishearten  some- 
times the  best  and  wisest.  Yet  had  not  Lady  Montagu  or 
Jenner  persevered,  the  one  in  introducing  inoculation,  the 
other  in  proving  the  benefit  of  vaccination,  despite  all  lam- 
poons, derision,  and  the  outcry  of  fanaticism  against  them, 
men  would  to  this  day,  perhaps,  be  subject  to  one  of  the 
most  malignant  diseases.  Had  not  Frederic  the  Great  of 
Prussia  persevered  in  promoting  the  cultivation  of  the  potato 
against  a  riotous  opposition  in  several  parts  of  his  dominions, 
many  individuals  would  have  suffered  famine  in  later  times. 
They  trusted  to  the  truth  or  justice  of  their  cause,  and  that, 
as  Napoleon  expressed  it,  "public  opinion  would  come  round 
again." 

But  let  us  ask  here,  at  once,  is  this  return  of  public  opinion, 
this  acknowledgment  of  truth,  a  comfort  to  which  man  may 
look  forward  as  an  unfailing  reward,  which  in  the  end  cannot 
escape  him  ?  It  is  undoubtedly  and  happily  true  that  respect- 
ing public  measures,  in  far  the  greater  number  of  cases,  the 
gradual  acknowledgment  of  truth  and  justice  will  supersede 
passionate  excitement  and  infatuation,  and,  still  more,  a  man 
or  a  measure  will  gather  additional  strength  from  such  a  re- 
turn of  public  opinion,  after  having  been  deprived  of  it  for  a 
period.  A  citizen  never  wields  greater  power  than  when  he 
has  firmly  stood  the  trial,   unmoved  and    calm,  and  when 


POLITICAL   ETHICS.  415 

public  opinion  returns  to  him,  not  he  to  it.  Yet  it  is  equally- 
true  that  your  life  may  pass  in  darkness,  the  best  intentions 
may  be  misunderstood  or  reviled,  and  what  is  not  true  may 
by  repetition  acquire  the  appearance  of  substantiated  fact.  A 
man  may  tell  the  truth  like  Marco  Polo,  and  yet,  like  him,  be 
decried  as  a  liar  to  his  grave  ;  century  after  century  may  hold 
him  up  as  an  impostor,  until  after  the  lapse  of  ages  his  strict 
veracity  may  at  length  be  firmly  established.'  We  ought  not 
to  deceive  ourselves :  appearances  may  in  some  cases  be  so 
strong  against  us,  and  by  accident  or  whatever  other  cause 
evidence  to  the  contrary  may  be  so  totally  destroyed,  that 
the  truth  can  never  be  known.  A  bitter  fate  indeed.  And 
what  then  ?  Then,  indeed,  nothing  is  left  except  what  is  still 
the  last  and  highest  support,  that  derived  from  Him  who  is 
the  inspiring  motive  of  all  noble  and  heroic  actions.  Your 
conscience  remains ;  and  even  a  heathen  said,  "  Justice  and 
honesty  are  truly  commendable  in  their  own  nature." 

XIV.  That  the  citizen  be  honestly  and  firmly  persevering, 
requires  that  his  purpose  be  good  and  his  cause  just;  that  he 
adapt  his  means  to  his  purpose,  and  his  purpose  to  his  means; 
that  he  concentrate  his  means  for  the  one  great  object  in  view; 
that  he  be  ever  mindful  that  repeated  and  uninterrupted  action 
may  compensate  for  the  absence  of  great  power;  and  that  in 
cases  of  the  greatest  trial,  when  the  struggle  comes  at  the 
last  between  nearly  balanced  powers,  a  trifle  must  decide. 

The  first  of  these  positions  is  clear;  for  perseverance  is 
power,  and  may  be  and  has  frequently  been  employed  in  the 
service  of  wicked  ends.  The  second  is,  perhaps,  equally  clear; 
yet  a  forgetfulness  of  this  rule  has  disheartened  many  well- 
intentioned  men,  while  in  other  cases  presumptuous  men  h  ive 


»  Marco  Polo,  when  on  returning  from  the  East  he  gave  an  account  of  his 
father's  and  his  own  travels,  was  totally  disbelieved,  proverbially  called  a  liar, 
an  I  mentioned  by  his  fellow-citizens  by  nicknames  only,  which  expressed  their 
contempt.  The  various  late  embassies  to  China,  however,  and  the  accounts  of 
those  who  have  personal  knowledge  of  it,  confirm  in  a  surprising  manner  Polo's 
veracity.     See,  among  other  wor'  s,  Davis,  The  Chinese. 


4i6  POLITICAL  ETHICS. 

frittered  away  their  talents  and  gifts,  which  otherwise  might 
have  been  employed  to  excellent  purposes,  and  they  them- 
selves have  ended  with  a  disappointed  temper  which  is  ever 
apt  to  betray  men  into  acts  of  injustice,  or  entangle  them  even 
in  nefarious  designs  projected  by  men  more  prudent  and  less 
principled.  We  have  seen  in  several  previous  passages  that 
without  a  degree  of  enthusiasm,  and  inspired  love  of  the 
Good,  men  are  in  want  of  a  principal  inducement  to  be  good ; 
utility  alone  is  insufficient  to  guide  or  support  us.  This  en- 
thusiasm, however,  must  be  balanced  by  modesty,  which  will 
teach  us  that  we  should  not  assume  our  opinion  as  the  sole 
guide,  and  that  we  must  temper  our  desires  and  endeavors 
according  to  the  different  spheres  of  action  in  which  it  has 
pleased  a  higher  hand  to  place  us.  Not  a  few  have  injured 
the  best  causes  because  their  ambition  went  beyond  their 
talent  and  they  would  not  suffer  the  first  place  to  be  occupied 
by  an  abler  man ;  or  because  they  strove  for  objects  wholly 
unattainable.  The  canvas  which  a  vessel  carries  must  be  in 
proportion  to  the  hull  and  cargo.  A  distinguished  man,  who 
was  more  variously  endowed  than  most  men,  and  most  active 
throughout  his  life,"one  of  the  master-men  of  his  age,  Leo- 
nardo da  Vinci,  took  the  sentence  of  Terence,  "  If  that  cannot 
be  which  thou  wilt,  will  that  which  can  be," '  for  the  motto 
of  his  life.  He  went  farther,  and  says,  "  Wise  is  he  that 
guides  his  will  by  that  which  he  cannot  perform."  =* 

The  third  principle — to  concentrate  our  strength  upon  one 
great  object  —  is  equally  important ;  for  a  man  cannot  fight 
two  battles  at  one  time,  and  it  is  true  in  the  moral  world,  as  in 
the  physical,  that  a  force  effects  most  in  a  straight  line,  and 
loses  the  more  obliquely  it  is  applied.  Singleness  of  purpose 
lends  great  strength.     The  clear  perception  of  what  we  want, 

•  "  Quando   non   potest   id   fieri   quod  vis,  id  velis   quod   possit,"     Andria, 

ii.  I,  5. 

»  A  sonnet  of  Leonardo's  begins, — 

"  Chi  non  pu6  quel  che  vuol  quel  che  pu6  voglia, 
Che  quel  che  non  si  puo  folle  e  volere  : 
Adunque  saggio  e  I'huomo  da  tenere 
Che  da  quel  che  non  pub  suo  voler  toglia." 


POLITICAL   ETHICS.  417 

and  in  what  way  we  ought  to  direct  our  endeavors,  increases 
with  it.  And,  again,  in  order  to  obtain  singleness  of  purpose 
it  is  important  that  we  should  clearly  present  to  ourselves 
what  it  is  we  essentially  strive  for.  No  man  takes  good  aim 
at  an  object  enveloped  in  dimness.  Timur,  who  will  be  al- 
lowed to  have  effected  mighty  things,  enumerates  among  the 
twelve  maxims,  which  he  had  laid  down  for  himself  and 
advises  his  successors  to  follow,  this  as  the  eighth  :  "  I  acted 
with  resolution ;  and  on  whatever  undertaking  I  resolved,  I 
made  that  undertaking  the  only  object  of  my  attention  ;  and 
I  withdrew  not  my  hand  from  that  enterprise  until  I  had 
brought  it  to  a  conclusion."'  "  Quidquid  vult  valde  vult," 
said  Julius  Csesar  of  Brutus.^ 

'  The  Institutes  of  Timour,  translated  by  Major  Davy,  Oxon.,  1789,  p.  157. 

In  Fraser's  Persia,  vol.  xv.  of  the  Edinburgh  Cabinet  Library,  p.  229,  the  fol- 
lowing anecdote  is  related  of  Timur,  but  I  am  unable  to  find  ic  in  the  above 
translation  of  the  Institutes,  or  the  previously-quoted  translation  of  his  own 
Memoirs. 

"I  once,"  says  Timur  himself,  in  his  Institutes,  "was  forced  to  take  shelter 
from  my  enemies  in  a  ruined  building,  where  I  sat  alone  for  many  hours.  To 
divert  my  mind  from  my  hopeless  condition,  I  fixed  my  observation  upon  an  ant, 
that  was  carrying  a  grain  of  corn  larger  than  itself  up  a  high  wall.  I  numbered 
the  efforts  it  made  to  accomplish  this  object:  the  grain  fell  sixty-nine  times  to 
the  ground,  but  the  insect  persevered,  and  the  seventieth  time  it  reached  the  top 
of  the  wall.  The  sight  gave  me  courage  at  the  moment,  and  I  never  forgot  the 
lesson  it  conveyed."  A  similar  incident  inspired  Robert  Bruce,  the  restorer  of 
the  Scottish  monarchy,  with  courage  to  persevere  in  his  undertaking,  mentioned, 
for  instance,  in  Scott's  Tales  of  a  Grandfather.  These  accounts,  true  or  not 
(and  there  is  no  reason  why  they  should  not  be  true,  though  there  is  none,  either, 
why  they  may  not  be  rather  the  expression  of  the  views  entertained  of  these  per- 
sonages in  after-times),  show,  nevertheless,  a  sound  moral  in  an  impressive  style, 
and  in  the  whole  sphere  of  practical  morals  it  is  salutary  if  we  can  compress  a 
great  truth  into  the  narrow  compass  of  one  impressive  image  or  fact,  which  in 
times  of  extremity,  depression,  or  excitement,  when  the  state  of  our  mind  is  unfit 
to  reason,  presents  itself  to  our  soul  like  a  symbol  of  this  truth,  and  is  apt  to  re- 
mind us  suddenly  of  the  result  of  our  reflections  in  calmer  hours.  Anecdotes 
of  this  sort,  therefore,  are  well  worth  remembering ;  but  whether  we  endeavor 
to  impress  our  mind  with  a  summing  up  of  this  great  virtue  in  the  moral  of  plain 
yet  pointed  fable,  or  an  anecdote,  or  the  name  of  a  man  who  has  practised  it 
■well — a  Fulton,  Isaac  Newton,  or  Coligny — it  is  all-important  to  stamp  this  v-rtue 
deeply  on  the  mind  in  earliest  years. 

»  As  Cicero  mentions,  ad  Att.,  xiv.  i,  2. 

27 


41 8  POLITICAL  ETHICS. 

Fourthly,  repeated  and  uninterrupted  action  may  compen- 
sate for  the  absence  of  power.  The  ancients  said  proverbially, 
"  Gutta  cavat  lapidem  non  vi  sed  ssepe  cadendo."  And,  like- 
wise, firm  perseverance  may  effect  much  with  small  means. 
They  were  but  crazy  vessels  in  which  Columbus  discovered 
the  New  World  and  Ross  sought  to  reach  the  north  pole.  It 
is  the  natural  course  of  things  that  few  great  objects  are 
brought  about  at  once  ;  radical  changes  never.  The  ideas,  of 
which  the  ultimate  changes  are  but  the  manifestations,  must 
make  their  way  from  within  outward,  from  below  upward ; 
and  for  this  it  is  necessary  both  that  a  beginning,  however 
insignificant,  be  made,  and,  if  once  made,  that  it  be  followed 
up  by  steady  action.  As  Demosthenes  was  laughed  at  when 
he  first  spoke,  but  by  perseverance  became  the  greatest  orator, 
so  there  are  few  great  ideas  which  have  wrought  extensive 
changes  that  were  not  at  first  disregarded,  perhaps  derided  or 
persecuted.  This  first  beginning  requires  courage;  but  it 
is  one  of  the  noblest  kinds  of  courage.  It  was  necessary  that 
Beccaria  or  some  one,  whoever  he  might  have  been,  should 
make  a  beginning  in  showing  the  inexpediency  and  cruelty  of 
most  penal  systems,  before  ultimately  the  great  reform  of 
punishments  could  take  place  which  we  happily  see  realized 
in  our  times  ;  Salmasius  or  Filmer  must  first  boldly  write 
against  witch  trials,  before  the  truth  could  be  widely  acknowl- 
edged, and  positive  legislation  finally  set  its  seal  upon  it 
under  the  dictates  of  public  opinion.  The  habeas  corpus  act 
passed  in  1679,  after  having  been  passed  by  the  commons  in 
1669-70,  73-74,  75-76,  and  rejected  by  the  lords.  How  long 
was  it  that  Soto,'  the  confessor  of  Charles  V.,  wrote  against 
the  trade  in  Africans,  before  Virginia  prohibited  it  in  1778, 
the  United  State?  provided  for  its  abolition  in  the  constitution 
of  1787,  and  England  followed  the  movement  in  1807,^  after 


'  Soto  de  Justitia  et  Jure. — See  Mackintosh,  General  View  of  the  Progress  of 
Ethical  Philosophy,  section  iii. 

=  The  American  laws  of  March  22,  1794,  April  7,  1798,  February  28,  1803, 
March  2,  1807,  March  3,  1819,  and  some  others,  have  reference  to  this  subject. 


POLITICAL  ETHICS. 


419 


a  parliamentary  struggle  of  twenty  years?  Of  whatever  party 
the  reader  may  be,  he  will  agree  that  the  emancipation  of  the 
Catholics  is  greatly  owing  to  Mr.  O'Connell's  perseverance, 
not  to  the  power  or  influence  which  he  originally  possessed, 
either  by  riches  or  rank,  but  which  he  acquired  by  near  thirty 
years'  unabated  exertion.  This  he  himself  calls  in  one  of  his 
speeches  the  great  secret  of  his  power.  Whether  he  wields 
this  power  at  present  for  the  weal  or  woe  of  Ireland,  this  is 
not  the  place  to  inquire  ;  all  we  have  to  consider  is  his  im- 
mense influence,  and  that  he  acquired  it  by  singleness  of 
purpose  and  unremitted  perseverance,  which  must  frequently 
have  been  seconded  by  circumstances,  —  in  which  case  it 
proves  indeed  the  value  of  perseverance,  —  but  must  also 
frequently  have  found  obstacles  in  them.  Those  who  ascribe 
O'Connell's  power  to  the  mere  lawless  spirit  of  a  demagogue 
and  servile  followers,  take  an  erroneous  view  of  history.  It 
is  his  perseverance,  in  union  with  his  talent,  applied  to  the 
peculiar  circumstances  offered  by  his  country,  which  gives 
him  this  uncommon  power  of  "  a  shape  and  magnitude  such 
as  history  never  yet  beheld."'  Sir  Samuel  Romilly,  after 
having  repeatedly  reflected  upon  the  melancholy  state  of  the 
British  penal  law,  and  having  regretted  that  he  allowed  him- 
self to  be  dissuaded  from  proposing  his  bill,  because  it  would 
have  made  a  beginning  by  drawing  attention  to  the  subject 
and  causing  discussion,  brought  in  his  bill  against  the  statute 
of  Elizabeth,  making  privately  stealing  over  five  shillings  cap- 
ital, June  15,  1808;  and  Sir  Robert  Peel's  law  taking  away 
death  for  so  many  offences  only  passed  in  the  year  1827.  Nor 
has  to  this  day  the  state  of  jails  been  thoroughly  reformed: 
the  years  i860,  1870,  1880,  nay  1900,  may  very  easily  arrive 
before  that  be  effected  ;  and  yet  if  within  one  hundred  years 
this   be   effected,  it  will  be  after  all  but  a  short  time,  con- 


and  make  negro-trading  from  Africa  piracy.  There  exists  a  very  complete  work 
on  the  histoi7  of  the  negro  trade  and  the  long  struggle  to  abolish  it,  by  Albert 
Hune:  Complete  History  of  all  the  Changes  of  the  Trade  in  Negroes  from  its 
Origin  to  its  Entire  Abolition,  Gottingen,  1820,  2  vols. 

'  Raumer,  England  in  1835,  translated  from  the  Germ-in,— Letter  VI. 


420 


POLITICAL  ETHICS. 


sidering  the  many  centuries  during  which  the  bad  laws  and 
erroneous  principles  had  time  to  grow  like  reeds  in  the  rank 
soil  of  passion. 

Fifthly  and  lastly,  a  trifle  decides  in  struggles  between 
nearly  even  powers,  and  therefore  in  the  hardest  struggles ; 
but  to  reduce  the  struggle  to  this  ultimate  apparent  trifle 
requires  the  utmost  perseverance  and  fortitude.  An  adage 
says  a  feather  may  break  a  camel's  back,  but  it  requires  all 
the  previous  heavy  load  to  enable  a  feather  to  exercise  such 
a  power.  The  holding  out  of  a  fortress  but  one  day  longer 
may  change  the  aspect  of  a  whole  war,  may  rescue  a  country, 
decide  a  victory ;  but  that  this  one  day,  this  one  last  effort, 
can  be  so  decisive,  it  is  necessary  that  the  besieged  should 
have  been  proof  against  all  misery  and  sufferance.  However 
gloomy  the  horizon  in  politics  or  war  may  be,  however  op- 
pressed a  good  citizen  may  feel,  this  one  fact  is  certain,  hope- 
less despair  makes  it  still  worse.  It  is  in  times  of  calamity 
that  perseverance  rises  to  fortitude  and  shows  man's  moral 
power  in  the  noblest  light.  If  the  best  cause  is  oppressed, 
fret  not,  but  wait  for  the  due  season,  and  prepare  thyself 
patiently  and  perseveringly  for  it.  Fabius  and  Washington 
despaired  not,  however  dark  and  lowering  the  clouds  were 
often  around  them.  It  is  in  times  of  war  that  frequently  all 
depends  upon  this  fortitude.  A  defeat,  without  this  quality 
in  the  commander  or  the  men,  may  be  irreparable ;  but  un- 
broken fortitude  may  turn  a  defeat  even  to  a  greater  loss  to 
the  enemy  than  to  ourselves,  if  we  fight  for  our  country  and 
he  for  a  cause  which  does  not  furnish  him  with  this  inexhaust- 
ible moral  source.  Had  Londonderry  not  held  out  so  perse- 
veringly in  1689,  William's  conquest  of  Ireland  could  by  no 
means  have  been  so  rapid ;  nor  could  his  great  ancestor, 
William  the  Silent,  have  wrested  the  Netherlands  from  Spanish 
tyranny  and  fanaticism,  with  all  his  own  fortitude  and  eleva- 
tion of  mind,  had  not  the  citizens  shown  almost  superhuman 
perseverance,  when  many  months  besieged  in  Leyden,  reduced 
to  the  utmost  misery,  so  that  when  at  length  the  hour  of  de- 
livery arrived  they  appeared  "  rather  like  barely  breathing 


POLITICAL  ETHICS. 


421 


skeletons  than  living  beings."     Palafox,  and  the  memorable 
defence  of  Saragossa,  ought  not  to  be  forgotten  here.^ 

XV.  Single  instances  of  fortitude  have  indeed  produced 
great  effects,  upon  those  who  were  witnesses  as  well  as  upon 
after-generations.  In  a  war  between  the  Dutch  and  English, 
the  factory  of  Jacatra,  on  the  island  of  Java,  was  besieged  by 
the  natives  by  land  and  by  the  English  by  sea.  The  com- 
mander's name  was  Broek.  After  some  parleys,  the  besieg- 
ing sultan  induced  the  Dutch  commander  to  come  into  his 
camp,  in  order  to  settle  further  some  points.  Broek  went,  but 
was  put  in  chains.  He  was  ill  treated  and  led  with  a  rope 
round  his  neck  to  the  walls,  that  he  might  call  upon  his 
countrymen  to  surrender  if  they  would  save  him  from  execu- 
tion. Broek,  thus  placed  before  his  countrymen,  entreated 
them  not  to  betray  their  duty,  and  to  hold  out,  whatever 
should  become  of  him.  It  is  easy  to  imagine  what  the  effect 
of  his  heroism  was. 

Yet  it  is  necessary  that  all  be  firm,  if  there  is  anything  great 
to  be  attained,  for  without  firmness  there  is  no  unity,  and 
without  unity  no  effect  can  be  produced,  neither  in  peace  nor 
in  war.  For  "  of  men  who  feel  their  honor  at  stake  in  battle 
more  survive  than  die."  ^ 

There  are  in  all  communities  people  of  a  naturally  gloomy 
and  desponding  disposition  :3  if  they  are  roused  by  alarm,  or 


'  Napier,  History  of  the  Peninsular  War,  book  v. ;  also  Southey,  History  of 
the  Peninsular  War. 

=  Iliad,  15,  563. 

3  It  is  in  peculiar  situations  that  men  show  their  character  in  native  simplicity. 
I  have  met  with  no  instance  which  exhibits  the  eager  and  the  desponding  charac- 
ters so  strikingly  as  in  Captain  Ross's  Polar  Voyage  in  1829-1833;  yet  they  are 
no  more  strongly  distinguished  than  we  should  find  in  every  society,  could  we 
but  penetrate  it.  When  he  and  his  crew  were  frozen  up,  yet  hoped  still  for  some 
breeze  which  might  liberate  them,  the  navigator  says,  "  Every  hand  was  held 
up  to  feel  if  a  wind  was  coming,  every  cloud  or  fog-bank  watched,  and  all  prophe- 
sied according  to  their  hopes  or  fears,  till  they  were  fairly  driven  off  the  deck 
by  the  necessity  of  turning  in  to  sleep.  Had  we  been  less  anxious  ourselves,  we 
might  have  been  more  amused  by  observing  how  the  characters  of  the  men  in- 


422 


POLITICAL  ETHICS. 


if  originally  they  unite  to  a  want  of  firmness  of  nerve  and 
mind  a  fretful  forwardness,  a  combination  of  character  which 
constitutes  the  alarmist,  they  become  very  dangerous ;  for  on 
the  one  hand  their  excitement  does  not  cillow  them  to  seize 
upon  those  means  which  are  left,  but  which  calmness  only 
can  discern ;  on  the  other  hand  they  destroy  order  and  con- 
cert, magnify  the  evil  by  mutual  repetition,  and  intimidate  the 
wavering ;  while  it  is  they  likewise  who  see  a  ground  for  sus- 
picion in  every  accidental  occurrence.  Most  people  who  have 
been  shipwrecked  are  well  acquainted  with  the  true  and 
dangerous  character  of  alarmists,  and  their  helplessness  at 
those  moments  which  require  the  greatest  effort.  As  citizens 
they  are  not  less  mischievous  in  creating  and  spreading 
panics.  These  unfortunate  men  see  in  every  public  misfor- 
tune a  crime,  and  commit  in  their  excitement  those  acts  of 
injustice  or  cruelty  on  suspicion  of  bribery  or  treason,  of 
which  history  relates  so  many  melancholy  instances.  No 
man  ought  to  allow  himself  to  be  frightened  out  of  his  wits 
by  disasters  and  to  wreak  them  on  the  head  of  the  unfor- 
tunate, as  the  Athenians  visited  the  loss  of  victory  on  their 
generals. 

The  repetition  of  the  same  thing  gives  it  to  the  senses  of 
every  one  the  appearance  of  probability;  yet  many  of  the 
most  exciting  rumors  are  founded  upon  nothing  more  than 
that  every  one  repeats  it  to  every  one.  It  does  not  become 
either  truer  or  less  true  by  this  process  :  all  depends  upon  the 
first  source.  It  cannot  be  too  early  inculcated  as  a  rule  for 
all  periods  of  life,  for  man  or  woman.  Ask  invariably,  but 
most  especially  in  cases  of  universal  rumor,  for  the  first 
source.     Who  said   it  ?     Who   saw  it  ?     Who  brought  the 


fluenced  their  conduct  on  this  occasion.  Those  of  an  eager  disposition  were 
continually  watching  the  eastern  sky,  to  discover,  in  the  changes  of  the  clouds  or 
whatever  else  might  occur,  the  first  promise  of  a  fair  wind  ;  while  the  despond- 
ing characters  occupied  the  bow,  looking  in  gloomy  silence  at  the  dark  sea  and  the 
sky  before  them,  and  marking  even  without  a  word  their  despair  of  our  ultimate 
success,  and  their  fears  that  our  voyage  was  about  to  come  to  an  end  at  even  this 
early  day." 


lOLITICAL  ETHICS. 


423 


news  ?  Whence  does  he  know  it  ?  And  this  alone  will  be 
found  to  be  an  antidote  against  many  rumors,  which  lead 
from  surmise  to  suspicion,  from  suspicion  to  charge  and 
accusation,  and  may  end  with  a  sentence  against  an  absent 
citizen,  as  in  the  case  of  Alcibiades  when  he  had  sailed  for 
Sicily,  and  was  suspected,  upon  increasing  rumor,  to  have 
defaced  the  statues  of  Hermes  shortly  before  he  had  set 
sail.  Rumors  may  destroy  credit,  involve  hundreds  in  ruin, 
seriously  injure  their  reputation,  and,  as  has  but  too  fre- 
quently happened  in  several  countries,  in  our  own  as  in  past 
times,  may  end  in  murder.  Few  pages  of  history  furnish  so 
striking  an  illustration  of  the  evil  and  often  awful  effects 
which  alarmists  may  produce,  and  which  are  engendered 
by  suspicion,  alarm,  and  irritation  at  misfortune,  of  cruelty 
in  consequence  of  want  of  manful  calmness,  and  a  total  mis- 
understanding of  one  another,  as  those  relating  to  the  first 
French  revolution.  The  first  emigrants  were  alarmists  ;  after- 
wards suspicion  rose  to  such  a  height  that  the  various  parties, 
the  Jacobins  and  Girondists  for  instance,  charged  each  other 
with  being  sold  to  the  foreign  monarchs,  after  the  head  of 
Louis  XVI.  had  fallen,  and  in  some  cases  at  least  it  seems 
that  those  who  made  the  charge  believed  in  it."  Therefore, 
be  calm,  and  learn  early  to  be  so,  by  training  your  mind  to 
analyze  and  dissect  rumor,  suspicion,  imputation,  and  clamor, 
and  you  will  save  yourself  many  bitter  reproaches,  which 
otherwise  you  must  heap  upon  yourself  for  acts  of  injustice, 
unfounded  alarm,  and  folly,  and  will  contribute  to  spare  your 
community  those  excesses  which  have  been  most  truly  and 


'  We  find  these  charges  not  only  in  the  heat  of  debate,  but  in  works  written 
after  the  period  of  the  greatest  excitement  had  passed.  In  the  M^moires  de 
Louvet  de  Couvray,  Paris,  1823,  i  vol.,  Louvet,  a  zealous  Girondist,  charges 
Marat  with  having  been  in  the  pay  of  the  allies,  and  Robespierre  with  having 
surrendered  Toulon  to  the  English,  because  he  worked  for  the  allies.  All  his 
violence  was  the  consequence  of  a  plan  to  make  matters  as  soon  as  possible  so 
bad  that  the  extreme  must  lead  again  to  royalty,  a  charge  which  we  might  under- 
stand if  brought  by  one  who  could  not  find  in  the  human  soul  another  key  to  his 
enormities,  but  here  is  a  Girondist  who,  it  would  seem,  in  good  faith  proffers 
this  absurd  charge. 


424 


POLITICAL  ETHICS. 


pertinently  called,  by  one  who  knew  them  by  experience, 
Rabies  civica  and  Furor  civilis ' — excesses  the  most  injurious 
effects  of  which  are  not  even  the  direct  injury  or  cruelty  which 
they  may  produce,  but  the  lowering  and  degradation  of  the 
community  at  large,  and  the  promotion  of  unfitness  for  civil 
liberty — the  destruction  of  its  sole  basis,  of  justice. 

Since  masses  or  large  numbers  are  peculiarly  subject  to 
panics,  on  account  of  repetition  assuming  the  appearance  of 
confirmation  of  truth,  and  the  want  of  necessary  means  in 
most  men  to  ascertain  the  precise  truth,  even  if  they  are  not 
inclined  to  yield  to  sudden  rumor,  it  is  a  rule,  though  simple 
yet  of  the  greatest  practical  importance,  that,  so  soon  as  there 
exists  a  general  rumor  seriously  affecting  the  community,  or 
so  soon  as  a  panic  has  seized  it,  committees  ought  to  be  ap- 
pointed, and,  if  general  meetings  cannot  be  held,  that  men  of 
public  spirit  should  appoint  themselves  as  a  committee  to  in- 
vestigate the  causes  and  correctness  of  the  rumor  and  report 
to  their  fellow-citizens  on  the  result  of  their  inquiries.  Those 
nations  who  are  not  well  versed  in  the  practical  part  of  civil 
liberty  have  frequently  felt  the  serious  evils  which  ensue  from 
a  neglect  of  this  simple  rule  ;  nor  do  those  communities  which 
have  been  longest  accustomed  to  the  practical  operations  and 
machinery  of  civil  liberty  always  resort  to  it  when  it  is  most 
needed.  Yet  a  committee  is  to  masses  what  calm  reflection 
is  to  every  individual  if  he  receives  important  news. 

We  may  mention  another  reason  which  requires  calmness. 
He  who  does  not  tutor  his  mind  will  fret  under  misfortune, 
and  as  individuals  so  at  times  whole  communities  are  irri- 
tated, and  consequently  unfitted  to  act  correctly,  when  a  gen- 
eral misfortune  befalls  them.  It  is  manful,  and  gives  self- 
respect,  to  submit  with  resignation  to  evils  which  cannot  be 
avoided,  while  calmness  alone  puts  us  in  that  frame  of  mind 
in  which  we  may  hope  soonest  to  discover  a  remedy,  should 
it  offer  itself  in  the  course  of  events. 

The  same  principles  which  determine  many  great  national 


'  Hor.,  Carm.,  iii.  24;  iv.  15,  17. 


POLITICAL  ETHICS. 


425 


actions  impel  the  mind  on  a  smaller  scale  in  limited  spheres; 
and  education,  be  it  that  by  others  or  self-education,  must 
early  be  directed  to  the  cultivation  of  calmness.  I  once  found 
a  stage-coachman  whipping  his  horses  far  more  than  seemed 
to  be  warranted  by  a  fair  desire  of  getting  on  rapidly.  When 
I  expressed  my  opinion  against  this  cruelty,  the  coachman 
answered,  "  Ah,  sir,  if  you  knew  how  my  teeth  ache  !"  The 
same  principle  of  action,  and  the  glaring  injustice  of  making 
some  one  smart,  no  matter  whom  or  why,  because  we  smart, 
may  be  found  on  many  pages  of  history,  in  actions  of  vas»- 
extent  and  of  calamitous  consequences.  Every  true  citizen 
ought  to  do  his  utmost,  in  times  of  danger,  suffering,  ot 
political  crime  justly  calling  for  public  indignation,  to  calm  all 
around  him.  In  this  consists  true  patriotism,  not  in  pouring 
fresh  oil  into  the  already  fearful  conflagration. 

XVI.  In  speaking  thus  of  the  low-spirited  or  desponding, 
it  was  not  my  intention  to  convey  the  idea  that  the  light- 
hearted  are  the  most  courageous  or  the  firmest  when  the  hour 
of  trial  arrives,  and  the  grave  and  more  sombre  natures  those 
which  soonest  despair.  On  the  contrary,  those  who  have  but 
little  hope  and  are  generally  not  sanguine  in  their  expecta- 
tions, yet  withal  are  not  of  a  desponding  nature,  will  be  found 
the  bravest  in  times  of  peril  and  calamity,  while  those  who 
form  the  most  sanguine  and  extravagant  expectations  at  the 
beginning  are  also  those  who  soonest  relax  and  perhaps  de- 
spond. Aristotle  goes  so  far  as  to  maintain  that  great  men 
are  almost  always  of  a  nature  originally  melancholy.  It  is 
not  necessary  here  to  inquire  what  precise  meaning  we  should 
give  to  the  word  melancholy,  in  order  fully  to  agree  with  the 
first  of  philosophers  :  all  we  have  to  observe  is  that  in  politics, 
as  in  any  other  relation  in  which  man  may  be  placed,  calm- 
ness of  mind  is  all-important;  without  it  we  cannot  be  just, 
wise,  manly,  or  effect  great  good ;  we  cannot  expect  support 
from,  or  be  the  support  of,  others,  and  we  make  success  a 
matter  of  chance  rather  than  the  reward  of  wisdom  and  rec- 
titude.    A  ruffled  temper,  acrimony,  passionate  excitement, 


426  POLITICAL   ETHICS. 

which  leads  to  extravagant  expectation  or  depression  of 
spirits,  are  no  more  injurious  in  the  private  sphere  than  in 
poh'tics  ;  whether  we  consider  the  citizen  in  the  primary  rela- 
tions of  the  state,  or  as  representative,  officer,  or  statesman 
proper.  But  calmness  of  mind  is  a  quality  which  can,  and 
therefore  must,  be  cultivated,  although  it  is  true  that  some 
individuals  are  originally  endowed  with  tempers  which  make 
it  tasier  or  more  difficult  to  attain  to  this  exalted  virtue. 
Sorne  of  the  greatest  men,  and  those  who  have  distinguished 
themselves  most  signally  in  this  very  particular,  have,  accord- 
ing to  their  own  confession,  not  possessed  it  by  nature.  Wash- 
ington— and  can  a  greater  example  of  calmness  be  cited  ? — is 
said  to  have  naturally  possessed  an  excitable  temper.  Socrates 
we  know  had  often  to  struggle  against  passion,  but  he  did  it 
successfully.  Reflect,  on  the  other  hand,  on  men  so  bounti- 
fully endowed  as  Alcibiades  or  Byron,  and  yet  so  wayward  in 
their  livee,  brilliant  like  a  meteor  indeed,  but  not  blessing  by 
a  regular  course  like  the  sun.  This  cultivation  of  calmness, 
hov\  ever,  as  has  been  mentioned  already,  ought  to  begin  early, 
so  that  by  degrees  and  perseverance  it  become  another  and 
our  truest  nature. 

XVII.  I  purpose  to  consider  the  absence  of  the  calmness 
of  soul  in  four  effects  chiefly,  namely,  fretfulness,  discontent, 
inconsistency,  and  obstinacy,  the  counterfeit  of  perseverance. 

The  first,  that  is,  fretfulness,  has  been  briefly  touched  upon 
in  a  previous  passage.  It  is  a  sure  sign  either  of  littleness 
of  mind  or  distrust  in  the  soundness  and  truth  of  our  own 
endeavor  and  object,  if  an  over-anxious  desire  is  manifest  of 
seeing  everything  we  hold  to  be  good  realized  at  once,  or  if 
we  stigmatize  those  who  disagree  with  us.  Cases  of  imminent 
danger,  and  measures  which  are  to  avert  it  or  threaten  to  bring 
it  on,  are  of  course  here  excepted.  A  conflagration  requires 
immediate  help.  Great  souls,  the  iJ.zyaX6(l<o'ioi  of  the  Greeks, 
who  strive  for  the  dissemination  or  establishment  of  some 
substantial  good  or  truth,  are  not  fretful ;  they  trust ;  if  they 
are  thwarted  they  heal  their  grief,  "  for  placable  are  the  hearts 


POLITICAL  ETHICS. 


427 


of  the  noble,"'  and  do  not  relax  on  that  account.  They  know 
that  victory  will  ultimately  be  theirs,  or  on  their  side,  even 
if  they  themselves  should  long  have  passed  away.  They 
trust  in  the  truth  of  their  principles  and  in  the  power  of  that 
truth ;  they  feel  convinced  that  if  the  principles  are  true  they 
will  assuredly  make  their  way  and  be  realized  in  practice. 
Great  and  calm  souls  look  upon  their  God,  who,  when  He 
created  the  rivers  and  the  sea,  knew  that  man  would  invent 
bridges,  boats,  and  sails ;  who,  when  He  called  the  earth  into 
existence  and  placed  man  upon  it,  knew  that  the  plough  would 
be  contrived  in  due  time.  Great  and  calm  is  his  creation. 
While  one  tree  is  shattered  by  the  lightning  of  the  heavens, 
innumerable  millions  grow  calmly  and  slowly;  while  one  beast 
of  prey  pursues  a  weaker,  myriads  are  born  and  unfold  silently 
the  great  principle  of  life. 

Discontent  and  peevishness  are  no  less  an  effect  of  the  ab- 
sence of  true  calmness,  perseverance,  and  greatness  of  soul.  In 
all  free  countries,  where  there  are  consequently  parties,  a  class 
of  men  will  be  found  who,  if  defeated  in  a  favorite  measure, 
will  retire  in  discontent  and  peevishness,  treating  the  existing 
state  of  things  with  disdain,  as  if  all  wisdom  and  disinterested 
virtue  were  on  their  own  side  and  none  on  the  other,  people 
who  perhaps  with  a  homely  but  appropriate  name  might  be 
called  political  grumblers  [grondeiirs  and  frondciirs),  and  who 
cannot  summon  up  sufficient  resolution  to  consider  a  question 
as  settled,  be  the  evidence  ever  so  strong.  They  frequently 
show  by  their  own  conduct  that  their  sympathy  was  never 
truly  with  the  people,  and  that  therefore  the  withdrawal  of 
support  was  not  so  ill  founded.  They  ought  to  recollect, 
however,  that  whether  their  retirement  be  seriously  felt  at  the 
moment  or  not,  certain  it  is  that  soon  they  will  be  forgotten 
and  society  will  learn  to  do  without  them.  Wlien  Walpole 
saw  he  could  not  carry  the  excise  bill,  that,  such  as  the  com- 
bined circumstances  were,  the  nation  would  not  take  it,  he 
manfully  abandoned  it,  not  indeed  his  conviction  that  it  would 

'  Iliad,  13,  115. 


428  POLITICAL  ETHICS. 

have  been  beneficial,  but  that,  good  or  bad,  the  nation  would 
not  have  it,  and  he  left  it  to  his  adversaries  themselves  to  ac- 
knowledge the  soundness  of  his  proposal,  which  Pitt,  after- 
wards Lord  Chatham,  one  of  its  most  strenuous  opposers,  did 
not  fail  solemnly  to  do,  in  the  commons,  when  Walpole  rested 
in  the  grave.  Retiring  in  peevishness  may  lead  to  various 
political  evils :  and  the  first  which  naturally  presents  itself  to 
our  mind  is  this,  that  if  those  who  have  gained  the  victory 
over  you  are  really  an  ill-intentioned  faction,  without  knowl- 
edge or  principle,  and  whatever  else  you  may  charge  them 
with,  you  only  increase  their  power  by  your  sullen  withdrawal. 
If  you  are  convinced  of  the  truth  of  your  cause,  stick  to  the 
vessel  of  public  welfare  to  the  last,  and  show  to  the  people 
that  you  really  desire  the  good  of  the  country,  and  not  your 
own  advancement,  by  that  buoyancy  and  indomitableness  of 
spirit  which,  whatever  fate  your  cause  may  have  met  with, 
cannot  be  defeated,  because  it  flows  from  faith  in  the  correct- 
ness of  your  cause  and  will  attain  for  you  the  esteem  of  all, 
your  adversaries  not  excepted. 

When,  in  the  year  1739,  the  British  tory  opposition  saw  that 
for  a  long  time  to  come  there  was  little  chance  of  success  for 
them,  and  the  convention  between  Spain  and  England  was 
ratified  by  parliament.  Sir  William  Wyndham,  with  a  number 
of  his  party,  seceded,  as  they  called  it,  from  parliament.  The 
consequence  was  that  Walpole,  his  opponent,  went  on  the 
better  for  it,  and  the  seceders  soon  regretted  their  ill-advised 
step.^     I  would  not  include  in  the  number  of  peevish  grum- 


'  Memoirs  of  Sir  Robert  Walpole,  London,  1816,  vol.  iv.  chaps.  52  and  53. 
The  reader  cannot  have  misunderstood  me  so  entirely  as  to  find  in  my  words  a 
palliation  for  the  conduct  of  ministers  who  cling  more  fondly  to  place  than  to 
principle,  and  belie  the  professions  upon  which  they  took  office  and  received 
support,  rather  than  part  with  the  luxury  of  power.  Having  chosen  Walpole  as 
an  illustration  of  the  one,  we  may  take  Lord  Townshend  as  an  examjile  of  hon- 
orable and  dignified  retirement  without  peevishness,  for  the  other,  as  it  belongs 
to  about  the  same  time. 

Brougham,  in  the  life  of  Tierney,  p.  147  of  his  Statesmen,  vol.  ii.,  says,  "  They 
[the  whig  opposition]  had  retired  and  seceded  from  their  attendance  in  par- 
liament upon  the  very  grounds  which  should  have  chained  them  faster  to  their 
seats :  namely,  that  the  government  was  ruining  the  interests  and  trampling  upon 


POLITICAL  ETHICS.  429 

biers  the  honest  Jacobites  of  the  time,  for  there  were  certainly- 
some,  though  probably  izw.     Unbounded  obedience,  or,  as  we 
would  now  term  it,  legitimacy  above  the  law,  had  for  so  long 
a  time  been  preached  by  many  of  the  highest  prelates,  ready 
to  sacrifice  their  station  to  this  ill-conceived  principle  of  re- 
ligion, that  it  is  not  difficult  to  imagine  men  who  conscien- 
tiously  believed    that   the    Hanoverian    race  were    usurpers, 
however    few    Englishmen    there    may  be    now   who   would 
maintain  that  Great  Britain  would  have  acted  wiser  or  better 
if  she  had  placed  the  Pretender  on  the  throne.     Those  Jacob- 
ites are  not  to  be  judged  on  strictly  political  grounds,  but  on 
those  of  religion  and  conscience ;  nor  would  we  call   them 
discontents,    but    rather    malcontents    or    disaffected.      They 
turned  their  face  from  the  whole  establishment  of  government, 
as  we   find    in  antiquity  the   malcontents  sometimes  leaving 
their  country  rather  than  submit,  and  planting  a  new  country. 
Political    peevishness,  moreover,  may  lead,  if  it    is    more 
effectual  and  general  than  it  has  commonly  the  power  to  be, 
to  political  apathy,  one  of  the  worst  political  evils,  of  which 
more  will   be  said   hereafter.     Finally,  if  it  should  become 
almost  regular  and  constant,   it  would   prevent   one  of  the 
requisites  of  a  free  country  and  of  peaceable  government  in  it 
— a  sound,  lawful,  temperate,  yet  active  opposition,  without 
which   either  liberty  must  vanish  or  open  disaffection  break 
forth.     Sir  Robert   Peel,  after  having  struggled  to   the  best 
of  his  power  against  the  reform  bill  —  and  why  may  we  not 
believe    that    he  was   honest  in  doing  so?    for   so    essential 
measures  will  always  be  looked  upon  at  the  time  from  very 
different  points  of  view  —  did  not  retire  in  peevishness  after 
the  defeat  of  his  party;  and  when   for  a  brief  time  he  was 
called  again  to  the  helm,  he  declared  that  he  considered  the 
reform  act  as  a  thing  settled  and  done  which  henceforth  must 
be  left  untouched.     Lord  Wellington  probably  disapproves, 

the  liberties  of  the  country;  and  that  the  people  were  not  sufficiently  alive  to  tha 
situation  of  their  affairs."  This  happened  in  1797.  Brougham  says  further,  on 
page  150,  that  this  could  never  happen  now,  without  throwing  up  the  delegatec 
trust. 


430 


POLITICAL  ETHICS. 


as  much  as  any  tory,  of  the  general  spirit  which  dictates  the 
acts  of  the  present  Melbourne  administration ;  yet  no  citizen 
can  be  farther  from  mere  political  peevishness  than  the  duke, 
as  indeed  might  be  expected  of  so  manly  a  soul.  I  shall 
consider  the  important  subject  of  Opposition  more  fully  in  a 
future  part  of  the  work. 

Most  true,  indeed,  were  the  words  of  the  weeping  Persian, 
who  saw  that  his  countrymen  were  engaged  in  a  ruinous  en- 
terprise, and  that  of  all  whom  he  saw  with  himself  under  the 
command  of  Mardonius,  few  would  be  living  after  a  short 
time :  "  The  bitterest  grief  in  the  whole  world  is  that  when 
we  have  all  wisdom  we  have  no  power;"'  but  he  left  not  on 
that  account  his  countrymen,  he  sneered  not,  disdained  not, 

XVIII.  Political  peevishness  is  connected  with  and  of  the 
same  origin  with  irritability,  a  quality  in  the  citizen  which  is 
highly  injurious,  and  not  unfrequently  makes  men  deaf  to  the 
plainest  dictates  of  patriotism,  as  in  the  case  of  Alcibiades,  who, 
in  consequence  of  the  great  injustice  done  to  him,  went  to  the 
enemies  of  his  country.  How  noble  appears,  on  the  other 
hand,  the  conduct  of  Aristides,  who,  when  ostracized  by  his 
fellow-citizens,  did  not  go  to  the  enemy  to  foment  and  direct 
a  war  against  his  own  country,  as  Hippias  had  done,  but  on 
being  restored  from  exile  aided  his  chief  political  enemy  in 
•saving  the  state ! 

I  believe  the  chief  points  respecting  this  subject,  both  eth- 
ical and  prudential,  may  be  summed  up  in  the  following: 

You  cannot  expect  those  to  love  or  support  you  whom  you 
affect  to  disdain. 

If  you  make  up  your  mind  to  be  a  public  man,  which  re- 
quires calm  consideration,  as  we  shall  see  anon,  you  must  not 
be  too  sensitive  to  undeserved  injuries  or  even  insults,  nor 
charge  those  that  are  offered  in  excited  times  by  individuals, 
to  the  whole  class  or  party  to  whom  they  belong,  still  less  to 
your  whole  country.     Impudence  cannot  be  weakened  more 


»  Herodotus,  9,  16. 


POLITICAL  ETHICS.  43 1 

effectually  than  by  calm  disdain.  Wellington  was  hooted  at, 
threatened;  and  insulted  during  the  reform  excitement;  yet  he 
seems  now  to  be  the  pride  of  all  classes  and  all  parties.  Poli- 
tics, because  they  are  public  matters,  matters  which  affect  the 
masses,  cannot  be  otherwise  at  times  than  rough  and  coarse; 
those  more  tender  relations  which  can  grow  out  of  personal 
and  individual  regard,  mutual  delicacy,  affection,  or  friendship 
alone,  or  the  more  refined  relations  of  purely  mental  commu- 
nion, cannot,  in  very  many  cases,  find  a  place  in  politics. 

Be  sure  that,  however  disappointed  you  may  feel,  nothing 
will  more  steadily  aid  you  than  readiness  to  serve  the  public 
in  whatever  place  they  may  put  you ;  and  especially  so  in 
cases  of  great  moment  or  danger.  Antiquity  shows  many 
instances  of  citizens  ready  to  serve  in  a  subordinate  position 
after  having  held  high  commands.  But  it  is  necessary  at  the 
same  time  to  beware  that  neither  your  honor  (your  adherence 
to  principles)  be  injured,  nor  that  you  appear  as  a  courtier  of 
the  people,  sedulously  seeking  favors  at  their  hands.  Few 
things  disgust  the  people,  if  in  a  state  of  any  moral  health, 
more  than  obsequiousness;  and  a  conscientious  and  honorable 
withdrawal  generally  finds  its  acknowledgment  as  soon  as  a 
peevish  one  finds  its  punishment.  Sound  popularity  must 
be  founded,  and,  like  any  other  affection,  first  of  all,  on  esteem. 

Withdraw  or  secede  when  your  presence  appears  to  sanc- 
tion crimes  even  in  a  degree.  Yet  even  in  this  case  extremi- 
ties, although  extremities  only,  may  demand  the  contrary. 
Carnot  abhorred  the  murderous  procedures  of  the  committee 
of  public  welfare  of  which  he  was  a  member.  Yet  he  re- 
mained at  his  post  because  he  considered  the  conquest  of 
France  by  the  allied  powers  as  the  greatest  of  all  evils,  and 
he  was  the  only  one  who  was  able  to  direct  the  military  move- 
ments. When,  in  their  turn,  the  members  of  that  committee 
fell  under  the  axe  of  the  guillotine,  he  alone  was  exempted. 

XIX.  Consistency  of  conduct  is  the  agreement  of  one 
measure  or  step  with  our  previous  ones,  or  it  is  the  existence 
of  the  same  spirit  through  a  variety  of  measures,  their  con- 


432  POLITICAL  ETHICS. 

nection  with  one  another  as  to  motive  and  principle — in  short, 
their  internal  connection.  This  meaning  of  consistency  will 
be  allowed  upon  reflection  to  be  the  only  admissible  one;  for 
actions  are  like  words :  they  may  mean  different  things,  ac- 
cording to  the  circumstances  which  call  for  them,  and  their 
essential  truth  and  real  meaning  lie  in  their  spirit,  not  in  their 
appearance, — in  short,  in  their  motive  and  object.  If  we  adhere 
to  this  meaning  of  the  term,  we  shall  be  ready  to  judge  with 
justice  of  the  acts  of  others,  both  good  and  bad,  and,  for  our- 
selves, not  to  shrink  from  actions  which  according  to  their 
outward  form  or  appearance  may  seem  to  militate  against 
previous  ones  of  our  life,  as  it  will  likewise  naturally  tend  to 
make  us  continue  in  the  right  path,  if  we  have  originally 
chosen  it  with  honesty  and  in  justice. 

Not  a  few  citizens  have  been  reviled  on  account  of  the 
appearance  of  their  actions  contradicting  their  avowed  prin- 
ciples, and  there  are,  probably,  few  cases  which  require  greater 
courage  and  firmness  in  an  upright  citizen  than  those  in  which 
he  conscientiously  adheres  to  his  principle  yet  does  not  seem 
to  do  so,  and  according  to  circumstances  cannot  expect  that 
his  true  motive  should  at  once  be  acknowledged,  especially 
if  those  whose  good  opinion  is  dearest  to  him  misunderstand 
him.  Yet  conscience  and  firmness  may  imperatively  demand 
this.  When  Pope  Pius  V.,  the  same  who  with  sadness  ex- 
claimed that  the  being  pope  does  not  promote  piety,  was  told 
that  the  inhabitants  of  Rome  disliked  him  on  many  accounts, 
he  answered,  "  The  more  they  will  deplore  me  when  I  am 
dead."     It  was  an  answer  worthy  of  the  greatest  patriot. 

In  judging,  therefore,  of  a  man's  character,  we  must  follow 
the  rule  adopted  by  the  historian,  who  does  not  judge  by  a 
single  act,  unless  he  has  the  most  accurate  and  minute  knowl- 
edge of  it  and  it  is  one  of  those  acts  which  incontrovertibly 
establish  at  once  a  good  or  a  bad  disposition;  but  he  judges 
by  the  tenor  of  the  whole  life  of  his  subject.  In  doing  this 
we  become  just  and  cautious  at  the  same  time.  A  single  act 
will  not  easily  lead  us  to  condemn  a  man  in  whom  we  have 
always  found  good  reason  to  repose  confidence,  nor  will  it 


POLITICAL   ETHICS.  433 

make  us  grant  confidence  without  farther  knowledge.  In 
spea|cing  of  Earl  Strafford,  Forster  remarks,  with  some  justice, 
respecting  Strafford's  early  professions  of  liberal  principles 
and  prominent  co-operation  in  the  Petition  of  Right,  "  He  was 
consistent  with  himself  throughout.  I  have  always  considered 
that  much  good  wrath  is  thrown  away  upon  what  is  usually 
called  '  apostasy.'  In  the  majority  of  cases,  if  the  circum- 
stances are  thoroughly  examined,  it  will  be  found  that  there 
has  been  '  no  such  thing.' "  '  We  have  to  add  only  this, 
that  many  people  deceive  themselves  ;  they  really  believe 
themselves  liberal,  while  nevertheless  their  whole  bias  is  such 
that,  when  the  years  of  testing  actions  arrive,  their  characters 
appear  of  the  opposite  kind. 

XX,  Waiving  the  moral  view  of  consistency  and  viewing 
it  merely  on  prudential  grounds,  we  find  that  the  freer  a 
people,  and  the  more  necessary  for  action  and  power,  there- 
fore, the  confidence  of  the  people  becomes,  the  more  indis- 
pensable is_  likewise  consistency.  In  a  despotic  government 
power  may  be  given  from  above  to  an  individual  who  has 
shown  great  inconsistency,  but  the  more  popular  a  govern- 
ment is,  the  more,  therefore,  confidence  is  required,  the  more 
necessary  also  is  consistency,  by  which  chiefly  this  confidence 
is  acquired.  It  is  a  very  important  matter  for  a  citizen  if  his 
fellow-citizens  can  say,  "  We  always  know  where  to  find  him." 
It  is  not  only  so  in  politics ;  it  is  so  in  all  branches.  We  trust 
an  author  in  particulars  if  he  has,  for  good  reasons,  acquired 
our  general  confidence.  We  do  not  believe  Shakspeare  to 
have  been  one  of  the  greatest  poets  because  he  makes  Romeo 
compare  his  lips  to  "two  blushing  pilgrims,"  transporting 
as  that  sonnet  is  ;  but  we  know  it  from  this  and  many  other 
passages  and  great  conceptions,  from  the  whole  tenor  of  his 
works,  and  confide  in  his  genius  even  though  we  should  find 
a  passage  or  two  undeniably  unpoetical.     We  do  not  believe 


'  Forster,  British  Statesmen,  vol.  ii.  p.  228,  forming  part  of  Lardner's  Cabinet 
Cyclopjedia. 

28 


434  POLITICAL  ETHICS. 

Frederic  the  Great  to  have  been  a  wise  monarch  because  he 
drained  the  marshes  of  the  Ukermark,  but  this  and  a  thousand 
other  things  throughout  his  Hfe  indicate  the  genius  of  a  great 
ruler.  A  single  speech,  however  strong  or  to  the  point,  did 
not  make  Pitt  a  statesman,  but  a  series  of  actions  acquired 
for  him  the  support  of  the  large  majority. 

Consistency  thus  gives  power  by  its  support  of  confidence; 
it  gives  power  likewise  by  the  even  direction  of  a  series  of 
measures  all  directed  to  the  same  point,  and  is  thus  closely 
connectecl  with  perseverance. 

It  will  appear  evident  from  the  meaning  which  we  have 
attached  to  the  word  consistency,  which  is  not  to  be  judged 
of  by  the  form  or  sign  of  the  action,  but  by  its  spirit,  that  to 
be  truly  consistent  the  minor  consideration  must  give  way  to 
the  greater,  and  finally  all  considerations  to  the  ultimate  end 
of  all  government,  the  welfare  of  the  people;  so  that  a  citizen 
may  with  perfect  consistency  and  conscientiousness  adopt, 
support,  or  defend  a  measure  to-day  which  he  strenuously 
opposed  at  an  earlier  period,  if  circumstances  have  essentially 
changed,  not  to  speak  of  an  improved  insight  into  the  subject. 
Lord  Wellington  and  Sir  Robert  Peel  long  opposed  Catholic 
emancipation  ;  let  us  suppose  both  to  have  been  honest  in 
doing  so;  if  so,  they  cannot  be  charged  with  inconsistency 
for  having  carried  that  measure  in  1829,  if  the  duke,  then  at 
the  head  of  the  administration,  w^as  equally  honest  in  de- 
claring on  that  occasion  that  he  must  choose  between  eman- 
cipation and  civil  war  of  the  worst  description. 

This  consideration  is  of  especial  importance  regarding  or- 
ganic measures — measures  which  settle  some  of  the  element- 
ary principles  and  features  of  government,  if  they  once  can 
be  considered  as  fairly  established  and  nationally  acquiesced 
in.  For  it  is  not  the  duty  of  every  citizen  eternally  to  be  at 
war  with  the  society  he  lives  in  ;  on  the  contrary,  it  is  his 
actual  duty  not  to  be  so,  except  there  are  specific  reasons. 
Nothing  can  be  easier  for  a  candid  mind  than  to  suppose 
some  Frenchmen  to  believe  in  the  honesty  of  their  hearts 
that  the  elder  line  of  the  Bourbons  is  the  only  legitimate  one, 


POLITICAL   ETHICS. 


435 


and  that  the  throne  of  France  is  usurped  so  long  as  there 
does  not  sit  one  of  that  Hne  upon  it.  Perverted  as  others 
may  consider  their  judgment,  they  still  will  allow  such  a  case 
to  be  quite  possible.  Yet  though  a  peer  may  have  these 
views,  and  although  he  may  have  expressed  them  even  pub- 
licly and  solemnly  at  the  time  of  the  last,  French  revolution, 
he  is  not  liable  to  the  charge  of  inconsistency  although  he 
take  his  seat  in  the  peers  and  join  in  all  measures  which  he 
considers  conducive  to  the  public  good  and  the  peace  and 
prosperity  of  his  country.  For,  with  all  attachment  to  the 
former  Bourbons,  he  may  say,  "  Even  they  ought  in  my 
opinion  to  be  placed  on  the  throne  only  for  the  benefit  of  the 
country  ;  this  is  the  ultimate  end  of  all  government  and  of 
my  principle  of  legitimacy.  I  cannot  place  them  there;  the 
nation  seems  at  large  and  overwhelmingly  to  side  with  the 
younger  Bourbons ;  the  question  as  for  my  part  is  settled,  at 
least  for  the  present;  let  me  then  do  what  good  I  can." 

Yet  this  principle,  if  not  applied  with  conscience  and  firm- 
ness, degenerates  into  a  political  frivolity,  which  makes  it 
easy  for  factions  to  seize  the  reins  of  government,  because  few 
resist  with  firmness  the  attempt  and  withhold  their  assent 
until  it  may  be  considered  as  fairly  acquiesced  in.  Fre- 
quently repeated  changes  of  government  demoralize,  as  they 
frequently  grow  out  of  a  previous  demoralization.  They 
unsettle  the  primary  and  solemn  engagements  of  the  citizen, 
and  leave  finally  nothing  but  interest,  selfishness,  corruption, 
as  the  chief  principles  of  action.  They  prevent  the  continu- 
ous development  of  society,  institutions,  literature,  and  public 
morality.  The  unhappy  kingdom  of  Naples  forms  a  melan- 
choly example.  Revolutions  are  at  times  not  only  necessary, 
but  salutary,  and  it  is  often  impossible  to  return  to  sta- 
bility after  a  revolution,  except  through  several  intermediate 
changes.  Yet  it  must  ever  be  considered  a  most  calamitous 
state  of  things  if  the  indifferents  and  "turn-coats,"  or,  as  the 
French  call  them,  "  weathercocks,"  become  the  majority,'    It 


'  The  French  name  for  weatherrock  is  girouctte,  used  for  turn-coat  or  trimmer. 


43^ 


POLITICAL  ETHICS. 


belongs  to  the  subject  of  revolution,  that  is,  of  open  rupture 
with  the  established  government,  to  consider  when  a  citizen 
is  allowed  or  even  bound  not  only  to  disregard  consistency, 
but  even  the  oath  (always  in  its  nature  a  conditional  one) 
which  he  has  taken  to  support  the  government. 

It  hardly  need  be  said  that  a  conscientious  citizen  must  not 
allow  himself  to  be  prevented  by  false  consistency  from  ac- 
knowledgment of  error  or  change  of  opinion,  but  he  ought  in 
most  cases  to  do  it  frankly,  openly,  for  this  is  fair  towards  his 
fellow-citizens,  and  no  mean  test  for  his  own  conscience,  and, 
like  every  noble  action,  invigorates  the  individual. 

XXI.  However  true  may  be  what  Napoleon  most  pointedly 
said  of  the  single  step  which  is  all  the  sublime  requires  to 
become  ridiculous,  the  two  border  no  closer  on  one  another 
than  fortitude  or  even  heroism  and  useless  or  dangerous 
obstinacy;  and  unfortunately  the  latter  is  much  more  the 
counterfeit  of  its  corresponding  virtue  than  the  ridiculous  is 
of  the  sublime.  Was  it  heroic  fortitude,  admirable  firmness, 
or  mad  obstinacy  that  made  Charles  XII.  of  Sweden  per- 
form at  Bender  those  daring  acts  of  indomitable  valor  which 
no  one  can  read  without  admiring  the  original  firmness  of  his 
character,  although  it  maybe  considered  in  that  case  daringly 
misapplied?  But  there  is  a  dogged  obstinacy  in  politics 
which  is  especially  mischievous,  because  it  is  peculiar  to 
narrow  minds  ;  a  hard-headed  mulishness,  which  cannot  be 
overcome,  because  it  is  wanting  in  the  necessary  capacity  to 
appreciate  reasons  and  circumstances,  and  because  all  narrow 
minds  are  prone  to  mistake  trifles  for  essentials,  and  will,  if 
naturally  endowed  with  courage,  adhere  immovably  to  them 
to  the  detriment  of  points  of  greater  magnitude.  The  nobler, 
the  freer,  the  more  conscious  a  mind  of  its  own  native  and  in- 

though  the  last  word  does  not  express  the  whole  and  habitual  turning  about.  A 
Dictionary  of  Weathercocks  was  published  in  Paris  after  the  Restoration,  in 
which  the  name  of  every  prominent  man  since  the  first  revolution  is  found 
with  as  many  signs  of  a  weathercock  as  the  number  of  times  he  has  changed  his 
political  creed ;  after  which  follows  an  account  of  the  changes.  There  is 
bitter  sportiveness  in  these  sad  hieroglyphics. 


POLITICAL  ETHICS.  437 

dependent  vigor  and  comprehension,  and  the  more  thoroughly 
a  heart  feels  its  own  elevated  firmness  and  readiness,  if  neces- 
sary, to  sacrifice  everything,  even  life,  the  more  tractable  is 
also  such  a  mind  to  the  force  of  reason,  the  more  pervious  to 
truth.  The  horse  is  more  tractable  than  the  mule ;  the  mule 
more  so  than  the  ass. 

Obstinacy  is  a  dangerous  quality  in  every  citizen,  be  he 
representative,  counsellor,  minister,  or  ruler,  and  proceeds  fre- 
quently no  less  from  a  general  heaviness  of  judgment  than 
from  a  vain  reliance  solely  on  the  shrewdness  so  peculiar  to 
narrow  and  small  minds  (the  inv.poil'oyyi)  placed  in  authority. 
James  II.  furnishes  a  remarkable  instance  of  the  ruinous 
obstinacy  of  contracted  minds  and  hearts.  A  later  instance 
is  perhaps  still  more  remarkable:  I  mean  that  afforded  in  the 
case  of  Charles  X.  of  France  and  his  minister  Polignac,  in 
their  long  train  of  infatuated  measures,  despite  all  signs  and 
warnings  of  the  times,  and  finally  of  the  hour  of  revolution; 
when  Charles,  against  the  imploring  entreaties  of  several  coun- 
sellors and  of  all  the  members  of  his  family,  insisted  upon  his 
daring  revolutionary  measures  with  a  will  which  would  have 
been  heroic  had  it  proceeded  from  an  elevated  mind  in  a  good 
cause  and  for  his  people,  and  at  least  respectable  had  he  ex- 
posed himself  to  any  danger  and  acted  boldly  instead  of  dog- 
gedly, but  which  appeared  in  its  true  light  the  very  moment 
after  the  contest  had  been  decided  between  the  parties. 

Obstinacy  is  not  calmness  of  soul,  but  frequently  originates 
from  the  opposite,  from  an  excited  state  of  mind.  In  what- 
ever light,  then,  we  may  view  it,  justice  and  firmness — firmness 
which  in  continued  exertion  is  perseverance;  in  the  even 
spirit  of  our  actions,  consistency ;  in  the  hour  of  trial,  forti- 
tude— form  the  groundwork  of  political  virtue;  and  we  can- 
not aspire  to  them  without  calmness  of  soul,  that  essential 
concomitant  of  every  good,  elevated,  and  enduring  action, 
which  made  William  I.  of  Orange,  the  illustrious  and  incom- 
parable deliverer  of  his  country,  adopt  in  that  fearful  struggle 
the  motto,  "  Seevis  tranquillus  in  undis." 


CHAPTER    III. 

Moderation. — Excitement. — Passion. — Revenge. — Obscuration  of  Judgment  by 
Excitement.  —  Honesty.  — Veracity.  —  Kant's  Opinion.  —  Honesty  in  Money 
Matters. — Desire  of  Wealth. — Love  of  Independence. — Poverty;  its  Effect  on 
Public  Men  in  ancient  and  in  modern  Times. — Necessity  of  being  free  from 
Debt. — Liberality.  —  Peculation.  —  Bane  of  Public  Covetousness.  —  Public 
Defaulters. —  Periods  of  Speculation. — Smuggling. 

XXII.  Moderation  or  temperance,  the  keeping  of  the 
proper  mean  between  extremes  and  the  tempering  of  excite- 
ment or  passion,  is  not  so  much  a  virtue  in  itself  as  a  means 
to  obtain  it.  Yet  it  is  so  important  a  one  for  the  frail  nature 
of  man,  and  so  difficult  to  become  master  of,  so  necessary  to 
train  ourselves  in,  that  it  may  grow  into  a  habit  without  which 
we  are  always  exposed  to  commit  many  acts  which  will  cause 
regret,  that  the  ancients,  and  the  school  philosophers  after 
them,  had  good  reason  for  counting  it  as  one  of  the  cardinal 
virtues.  It  has  already  been  stated  that  it  is  included  in 
strict  justice,  and  all  that  has  been  observed  respecting  calm- 
ness relates  to  the  subject  of  moderation  ;  yet  so  important  is 
moderation  in  politics,  because  there  are  so  many  opportuni- 
ties in  all  the  political  spheres  for  excitement  and  passion, 
that  it  will  need  no  excuse  if  a  few  more  remarks  are  added. 

First  of  all  it  ought  to  be  repeated  that  we  cannot  expect 
moderation  to  stand  by  us  in  the  hour  of  trial,  as  a  true  friend, 
we  cannot  expect  to  listen  to  its  counsel  or  that  it  should 
speak  with  a  voice  sufficiently  loud  to  be  heard  when  we  are 
in  a  state  of  excitement,  if  we  have  not  made  it  a  habit  of  our 
life.  Moderation  cannot  be  acquired  unless  it  be  an  honest, 
daily-repeated  endeavor  to  temper  our  appetites  and  impulses. 
No  rider  expects  a  spirited  horse  to  be  broken  by  only  once 
putting  a  bridle  on  it,  or  that  it  should  submit  to  his  guiding 
hand  when  frightened  or  excited,  unless  he  have  it  well 
438 


POLITICAL  ETHICS.  439 

trained  by  repeated  and  judicious  and  patient  management 
when  there  are  no  startling  causes  surrounding  it.  And  as 
no  habit  can  ever  be  so  easily  and  thoroughly  acquired  as  in 
youth,  so  as  to  become  a  second  nature,  it  is  necessary  that 
we  should  train  ourselves  in  this  indispensable  habit  from  our 
early  years.  We  ought  never  to  forget  that  our  Maker,  having 
deeply  implanted  appetites  and  impulses  in  our  soul,  so  that 
they  appear  afterwards  in  their  native  vigor  in  each  individual, 
because  indispensable  in  the  whole  organization  of  the  indi- 
vidual and  household  of  society,  likewise  gives  to  each  indi- 
vidual the  faculty  of  reflection  and  reasoning,  and,  in  order  to 
let  each  individual  have  a  moral  value,  leaves  it  likewise  to 
each  man  to  rule  impulse  by  reflection.  Without  this  we 
should  be  machines  directed  from  without,  not  individual 
moral  beings  determined  from  within. 

Secondly,  we  must  remember  that  in  politics  we  act  in  a 
great  number  of  cases  in  union  with  others,  who,  therefore, 
necessarily  excite  one  another  by  mutual  action  and  reaction; 
frequently  we  act  like  the  pilot,  surrounded  by  stirring  and 
swiftly-impelling  agents  or  bewildering  dangers ;  we  are  often 
called  upon  to  give  our  unqualified  vote  immediately  after  the 
most  exciting  scenes,  and  in  many  cases  we  act  while  strug- 
gling with  opponents  or  when  we  possess  power,  which  in  its 
nature  is  impatient  of  resistance.  On  this  last  point  and  the 
nature  of  power  I  have  dwelt  at  some  length  elsewhere  in 
this  book.  All  these  reasons,  then,  are  very  strong  to  induce 
us  to  train  ourselves,  and  if  the  young  are  intrusted  to  our 
care  as  parents,  guardians,  or  teachers,  to  train  them  in  mod- 
eration; while  mutual  moderation  is  one  of  the  choicest  fruits 
of  true  friendship  in  our  political  life  no  less  than  in  the  whole 
career  of  man. 

XXIII.  There  are  two  evils  in  particular  which  can  be 
prevented  by  habitual  moderation  only,  on  the  one  of  which 
some  observations,  indeed,  have  been  offered  already,  which  I 
will  endeavor  to  complete  now  as  far  as  the  object  of  this 
work   seems   to   require:    I   mean  excitement   and    revenge. 


440  POLITICAL  ETHICS. 

Passion  as  much  perverts  our  inner  man  as  it  hideously 
changes  the  outer,  which  Seneca  very  justly  depicts  at  the 
beginning  of  his  treatise  De  Ira.  Judgment,  justice,  truth, 
not  to  speak  of  the  more  delicate  yet  no  less  necessary  quali- 
ties of  kindness,  clemency,  generosity,  and  other  virtues,  which 
flow  from  the  noblest  part  of  the  soul,  are  wholly  banished 
from  the  passionate  at  the  moment  of  excitement,  rage,  or 
ire ;  and  a  man  who  has  not  acquired  the  habit  of  moderation 
is  like  a  tiger ;  he  may  be  calm,  but  it  does  not  depend  upon 
him  whether  he  will  remain  so;  a  single  drop  of  blood,  which 
accident  may  show,  suddenly  calls  forth  his  fury.  It  is  true 
that  some  nations  are  much  more  prone  to  passion  than 
others  :  climate,  food,  institutions,  and  national  education  ex- 
ercise a  powerful  influence.  Thus,  the  English,  and  it  would 
seem  still  more  so  the  Americans,  are  less  prone  to  ebullitions 
of  temper  than  the  nations  of  the  European  continent,  and 
again  the  Germans  less  so  than  the  French  and  Spaniards ; 
but  all  are  men,  all  have  the  lurking  fire  within  them,  all 
stand  in  need  of  training,  of  being  guided  by  the  calmness 
and  judgment  of  reason;  especially  so  as  regards  not  that 
passion  which  shows  itself  in  sudden  irruptions,  but  the  ex- 
citement which  gives  us  lasting  oblique  views  and  perverts 
our  judgment  and  train  of  reasoning  enduringly. 

On  various  occasions  I  have  spoken  of  the  very  simple  yet 
very  important  fact  that  the  nearer  an  object  is  to  our  eyes 
the  larger  it  appears,  and  the  less  we  are  enabled  to  view  it  in 
all  the  proper  relations  of  surrounding  objects.  All  insula- 
tion magnifies.  Now,  if  we  are  engaged  in  an  arduous  en- 
deavor to  bring  about  a  certain  object — I  do  not  speak  merely 
of  what  more  properly  may  be  called  a  political  struggle,  but 
of  all  measures  and  actions  in  which  we  are  engaged  with 
ardent  intent  of  purpose  —  this  intent  is  apt  to  magnify  the 
subject  to  our  eyes,  we  gradually  lose  sight  of  other  consid- 
erations, and  not  unfrequently  are  betrayed  even  so  far  as  to 
forget  the  ultimate  object  and  to  be  ready  to  sacrifice  every- 
thing to  the  means.  Not  only  are  warriors  prone  to  forget 
that  the  end  and  object  of  all  war  must  be  peace;  even  phy- 


POLITICAL  ETHICS.  44I 

sicians  have  at  times  forgotton  the  end  of  all  their  art,  healing 
the  sufferings  or  assuaging  their  pain,  in  the  interest  of  a  curious 
operation  or  the  trial  of  a  new  remedy.  The  effect  of  this 
circumstance  in  politics  is  not  only  that  parties  forget,  in  their 
zeal,  that  parties  can  be  defended  only  on  the  ground  of  the 
ultimate  end  of  all  politics,  namely,  the  welfare  of  the  whole, 
but  also  are  very  apt  to  consider  each  single  case,  in  which 
they  are  thus  zealously  engaged,  as  a  peculiar  one,  a  crisis 
demanding  therefore  peculiar  means,  and  allowing  a  stretch 
of  power  or  the  adoption  of  expedients  which  in  other  cases 
they  would  discountenance  as  inadmissible.  When  a  late 
president  of  the  United  States  changed  the  officers  of  govern- 
ment on  a  much  larger  scale  than  any  of  his  predecessors  had 
done,  or  than  many  citizens  believed  to  be  warrantable  in  a 
free  government,  where  every  one  should  be  allowed  to  have 
his  independent  opinion  and  to  express  it  in  a  lawful  manner, 
the  measure,  allowed  to  be  extraordinary  though  within  the 
letter  of  the  law,  was  excused  in  the  senate  of  the  United 
States  on  the  ground  that  there  had  been  a  crisis.  Future 
historians,  untouched  by  the  exciting  circumstances  of  the 
time,  seeing  the  objects  in  their  true  respective  dimensions, 
will  judge  whether  there  was  really  a  crisis,  or  whether  it  was 
only  a  state  of  things  which  presented  itself  as  a  crisis  to 
those  who  had  striven  to  place  that  president  in  the  chair 
of  the  highest  magistracy,  and  had  become  wrought  up  into 
an  excitement  which  prevented  calm  judgment  and  clear 
vision. 

There  is  no  deviation  from  law,  or  right  and  justice,  whether 
on  a  large  scale,  such  as  assuming  power  directly  against  the 
constitution  of  the  land,  or  on  a  smaller  scale,  such  as  bribing 
at  elections,  which  it  is  not  attempted  to  justify  on  the  ground 
of  the  urgency  of  the  case  for  the  public  welfare— this  public 
welfare,  so  truly  the  end  of  all  government,  and  yet  so  fre- 
quently made  the  pretext  of  partial  measures  or  the  perversion 
of  established  law  and  the  cause  of  justice.  In  South  America 
the  people  unfortunately  fly  from  one  crisis  to  another;  it  was 
attempted  to  justify  all  extra-constitutional  measures  of  the 


442 


POLITICAL  ETHICS. 


Stuarts,  all  tonnage  and  ship-money  was  extorted  by  Charles 
I.  against  the  law,  on  the  score  of  necessity  for  the  public  wel- 
fare, of  which  it  was  for  the  king  alone  to  judge.  Charles  X. 
of  France  in  1830  broke  the  constitution  by  declaring  that 
one  of  its  articles,  which  confided  the  watching  over  the  public 
welfare  to  him,  demanded  those  measures  by  which  virtually 
the  constitution  was  declared  void. 

XXIV.  Excitement,  as  it  obscures  the  judgment  of  parties 
and  causes  them  to. mistake  their  own  advantage  for  that  of 
the  public  welfare,  is  equally  powerful  in  presenting  to  the 
leaders,  or  those  who  have  great  or  supreme  power,  their 
personal  interest  as  the  general  interest  of  the  government  or 
the  people.  There  is  hardly  a  life  of  a  premier  which  does  not 
exhibit  such  cases ;  and  few  will  deny  that  Napoleon  ended 
by  almost  completely  measuring  the  interests  of  France  by 
his  own.  That  those  who  have  great  power  concentrated  in 
their  hands,  and  especially,  therefore,  monarchs  little  re- 
strained by  law  and  endowed  with  great  wisdom  and  energy 
sufficient  to  make  all  the  possible  use  of  this  absence  of  re- 
straint, are  peculiarly  liable  to  this  distortion  in  viewing 
things  and  permutation  of  interest,  is  clear  from  the  nature 
of  things ;  but,'  as  was  already  indicated  when  we  treated  of 
public  power,  every  one  who  has  power  is  equally  liable  to 
this  great  and  mischievous  error,  and  the  people  collectively 
not  less  so  than  individuals.  Opposition  irritates.  Want  of 
moderation,  therefore,  will  always  expose  us  to  practise  hasty 
redress  or  revenge,  on  a  larger  or  smaller  scale,  and  in  a  more 
or  less  violent  spirit ;  for  that  excitement  which  first  made 
us  consider  opposition  to  ourselves  or  our  power,  or  perhaps 
only  dissent  from  our  views,  as  opposition  to  the  good  cause 
or  the  public  welfare,  is  no  less  active  in  causing  us  to  look  on 
measures,  which  in  the  inscrutable  depth  of  our  soul  have 
been  generated  by  irritation  and  revenge,  as  necessary  on  the 
score  of  public  good.  Elizabeth,  when  consenting  to  punish 
with  death  or  barbarous  mutilation  persons  who  had  not  even 
written  against  her  power,  but  had  only  offended  her  by  touch- 


POLITICAL  ETHICS. 


443 


ing  in  the  course  of  argument  points  disagreeable  to  her, 
for  instance  her  age,  thought  in  all  probability  that  it  was 
necessary ;  her  general  character  seems  to  warrant  it.  Never- 
theless, it  was  revenge  cloaked  in  that  abused  term,  public 
welfare.  When  Henry  IV.  of  France,  so  wise  in  h.is  public 
measures,  resolved  upon  his  last  war,  little  doubt  can  remain 
that  in  doing  so  he  was  accelerated  at  least  by  his  love  for  the 
princess  Conde,  whose  husband  had  carried  her  to  Brussels 
and  would  not  yield  to  Henry's  demands  to  return  to  France.^ 
It  is  just  to  speak  of  these  measures  in  candor  and  not  to  var- 
nish them  over  because  their  authors  were  great  princes  ;  it 
is  equally  just  to  look  around  us  and  upon  ourselves.  Men 
in  power  allow  revenge  to  present  itself  under  a  thousand 
different  guises,  and  if  it  does  not  rise  from  within  themselves 
it  is  sure  to  be  introduced  as  an  agreeable  visitor  by  their  de- 
pendants. Be  therefore  peculiarly  careful  in  acting  towards  a 
man  who  has  opposed  you,  and  especially  so  if  he  has  offended 
you.  You  cannot  be  too  suspicious  of  the  deep,  uncon- 
scious and  transforming  processes  and  workings  of  your  own 
heart.  We  see  but  too  easily  what  we  wish  to  see,  and,  under 
the  garb  of  the  advice  or  demands  of  others,  receive  with 
eagerness  anything  which  corresponds  to  some  hidden  desire 
within  some  recess  of  our  hearts.  There  are  several  beautiful 
examples  not  only  of  moderation  and  absence  of  revenge,  but 
of  conscious  cultivated  cautiousness  lest  there  might  be  some 
secret  working  of  offended  power,  in  the  life  and  letters  of 
Washington  as  given  by  Mr.  Sparks.  On  the  other  hand, 
let  not  the  sad  pages  of  history,  on  which  the  dark  acts  of 
revenge,  whether  monarchical  or  popular,  individual  or  by 
masses,  are  recorded  in  letters  of  blood,  be  written  in  vain, 
but  let  us  derive  from  them  their  proper  lessons.  Lastly,  by 
moderation  alone  can  we  avoid  that  most  fearful  agent  in 
politics — fanaticism. 


'  Raumer's  History  of  the  Sixteenth  and  Seventeenth  Centiuies,  illustrated  by 
Original  Documents,  vol.  i. 


444  POLITICAL  ETHICS. 

XXV.  Honesty,  or  the  acting  in  truthfulness,  is  of  the  last 
importance  in  politics,  and — although  it  is  enjoined  in  every 
moral  code,  by  every  religion  which  possesses  any  feature  of 
morality,  in  ev^ery  course  of  education,  in  short,  although  it  is 
universally  acknowledged  as  one  of  the  primary  ingredients 
of  purity  within  and  correctness  of  conduct  towards  others — 
deserves   particular  attention   in   a  work  on  political  ethics. 
That  a  man  who  acknowledges  the  binding  obligation  of  the 
commandment,  "  Thou  shalt  not  bear  false  witness  against 
thy  neighbor,"  is  not  allowed  to  tell  falsehoods  in  politics, 
that  field  of  action  which  depends  more  directly  upon  justice 
than  any  other,  however  pressing  the  case  may  appear  at  the 
moment  and  whatever  advantage  at  the  moment  may  deceive 
our  eyes  with  brilliant  colors,  is  too  evident  to  be  dwelt  upon 
here.    Yet  we  find  great  laxity  as  to  the  obligation  of  veracity 
in  politics  :  wilful   calumnies  are  propagated,  fictitious  facts 
boldly  proclaimed,  the  reputation  of  men  attacked  in  its  very 
vitals,  under  the  deceptive  excuse  of  party  warfare,  as  if  the 
victory  of  a  party  was  the  ultimate  object,  and  the  prevalence 
of  truth  and  the  spirit  of  veracity  not  more  important.     The 
term  "  party  warfare"  itself  is  a  revolting  abuse  of  language, 
misleading  many  unwary  persons,  as  all  false  terms  or  similes 
do  in  matters  of  importance.     I  find  it  difficult  to  write  upon 
this  subject ;  for  while  on  the  one  hand  all  that  can  be  said 
must  be  trite  and  is  denied  by  no  one,  reality  shows  us  that 
truth  is  to  a  frightful  extent  abandoned.    Thousands  and  thou- 
sands go  every  Sunday  to  church  and  willingly  admit  every- 
thing which  may  be  brought  forth  on  the  solemn  obligation 
of  truth,  and  yet  are  ready  on  Monday  to  asperse  in  public 
articles  the  character  of  a  fellow-citizen  knowingly  with  false 
accusations,  or  with  charges  which  they  know  that  they  have 
not  taken  sufficient  care  to  ascertain.    What  else  can  be  urged 
against  them  except  "  You  know  you  are  wrong"  ?    It  might 
be  shown  indeed  that  even  on  merely  prudential  grounds  they 
will  act  more  wisely  in  adhering  to  truth  ;  for  truth  gives 
power;  truth  is  power;  the  word  of  a  true  man  is  listened  to, 
and  to  him  the  people  naturally  turn  for  support:  but  their 


POLITICAL  ETHICS. 


445 


conduct  shows  that  they  believe  that  the  obtaining  of  a  mo- 
mentary end  is  more  important  to  them  than  the  great  cause 
of  universally  diffused  veracity,  honesty,  or  integrity,  what- 
ever name  may  be  given  to  the  same  virtue  viewed  from  dif- 
ferent points.  They  should  not,  however,  forget  that  the 
strength  of  a  man  or  a  party  does  not  rest  on  a  single  act  or 
success  ;  it  is  a  series  of  actions,  the  consecutive  manifesta- 
tions, in  these  acts,  of  the  spirit  which  produces  them,  which 
can  alone  decide  and  alone  acquire  that  confidence,  upon 
which  in  free  countries  all  power  ultimately  depends.  To 
those  who  know  that  in  acting  as  citizens,  in  whatever 
capacity  this  may  be,  private,  semi-official,  or  official,  they  do 
not  shift  their  primary  moral  obligation,  and  who  mean  to  do 
right  in  politics  as  in  the  family  or  towards  friends,  in  their 
profession  or  wherever  else  it  may  be,  let  it  be  repeated, 
though  all  know  it,  that  God  sees  all  and  everything — a  truth 
inculcated  on  the  mind  of  the  schoolboy,  and  of  most  mighty 
import  to  the  highest  statesman  or  ruler. 

XXVI.  Falsehoods  are  so  generally  condemned,  and  they 
recoil  with  so  damning  a  power  upon  their  utterer,  that,  as  was 
alluded  to,  an  experienced  politician  would  abstain  from  them 
even  were  it  but  for  the  sake  of  prudence,  well  knowing  as  he 
does,  too,  that  the  freer  a  country  the  more  likely  it  is  that  the 
truth  of  the  matter  will  come  to  light  some  day  or  other. 
There  is  a  sifting  and  searching  power  respecting  this  point 
in  free  countries,  which  outstrips  all  the  espionage  of  the 
police.  The  politics  of  free  countries  places  men  continually 
in  such  different  positions  and  so  close  to  one  another,  that 
more  will  be  brought  to  light  by  this  natural  operation  of 
politics  than  the  most  skilful  police  could  discover  with  its 
ramified- exertions.  As  to  the  damning  power  of  falsehoods, 
there  is,  I  believe,  no  greater  stigma  upon  the  memory  of 
George  IV.  than  his  base  denial  in  parliament  of  his  marriage 
with  Mrs.  Fitzherbert,  through  his  adherents  who  were  un- 
conscious of  the  imposture. 

Wherever  men  act  jointly,  especially  in  some  compact  body, 


446  POLITICAL  ETHICS. 

whether  they  are  incorporated  or  form  a  self-constituted 
society,  or  are  held  together  by  a  common  purpose  and  name, 
they  are  apt  to  show  great  readiness  in  denying  facts  which 
might  dishonor  or  otherwise  injure  the  reputation  of  their 
body;  and  men  who  would  not  be  willing  to  state  any  wilful 
falsehood  in  their  own  behalf  show  themselves  far  less  scru- 
pulous in  doing  so  if  prompted  by  esprit  de  corps.  The  act 
apparently  loses  a  degree  of  baseness  because  done  for  others. 
Religious  or  literary  societies  are  not  freer  from  yielding 
to  this  tempting  sin  either  of  wholly  denying  truth  or  dis- 
torting it,  than  political  parties  or  writers  who  vindicate  the 
honor  of  their  country.  Yet  that  remains  true  which  St. 
Augustine  found  reason  to  state:  "Falsehood  is  not  to  be 
tolerated  under  the  veil  of  piety,"  and  that  "  melius  est,  ut 
scandalum  oriatur  quam  Veritas  relinquatur,"  better  that 
scandal  come  than  that  truth  be  abandoned. 

Veracity,  the  best  moral  preventive  and  preservative  in  pri- 
vate life,  is  all  this  in  public.  Be  true,  and  thus  alone  you 
will  have  overcome  a  thousand  dangers  besetting  the  judg- 
ment, moral  worth,  strength  of  character,  and  power  of  repu- 
tation of  a  public  man.  Be  true  to  others,  to  your  life,  to 
your  soul,  to  yourself;  be  true  to  your  time,  to  the  principle 
on  which  you  rose,  which  has  supported  you.  Had  Cromwell 
been  but  true,  how  many  dangers  would  his  great  mind  have 
escaped  ! '  In  no  sphere  is  essential  veracity,  that  is,  truth  of 
thought,  of  word  and  action,  which  is  infinitely  more  than 
mere  absence  of  deceit,  more  important  than  in  politics  : 
"  Quid  est,  quod  afferre  tantum  utilitas  ista,  quae  dicitur, 
possit,  quantum  auferre,  si  boni  viri  nomen  eripuerit,  fidem 
justitiamque  detraxerit?"  By  a  diffused  spirit  of  truth  alone 
we  avoid  that  loathsome  and  demoralizing  agent,  always  busy 
among  small  and  untrue  men — I  mean  cant,  be  this  religious 
cant,  such  as  was  frequent  during  the  British  civil  wars;  or 


»  [For  a  vindication  of  Cromwell  from  this  charge,  see  Carlyle's  Heroes,  lect. 
vi.  p.  190,  Amer.  ed.     He  dissembled,  but  did  not  lie.] 


POLITICAL  ETHICS.  447 

philosophical  and  philanthropic,  as  during  the  French  revo- 
lution; or  theological,  as  in  the  Byzantine  empire;  or  of 
loyalty,  as  under  Louis  XVIII. ;  or  of  liberty,  as  often  met 
with  in  the  most  selfish  parties  in  republics. 

XXVII.  Still,  the  great  question  of  veracity  is  not  exhausted 
by  the  preceding  remarks.  We  have  to  deal  in  politics,  at 
times,  with  wicked,  dangerous  men,  who  would  betray  our 
most  sacred  interests,  and  against  whom  we  must  struggle  in 
the  honesty  of  our  heart ;  or  some  of  the  dearest  interests  of 
our  country  may  be  intrusted  to  us  and  imperatively  demand 
secrecy,  for  instance  when  we  are  ambassadors  in  delicate 
transactions ;  though  even  this  is  far  less  frequently  the  case 
than  it  was  formerly  imagined  to  be  or  was  perhaps  actually 
formerly  the  case,  when  politics  were  more  cabinet  politics 
than  national  politics.  Now,  it  is  very  clear  that  we  cannot 
be  bound  to  answer  anything  which  the  querist  has  no  right 
to  ask.  But  this  is  not  sufficient  to  solve  our  question;  for 
no  answer,  or  an  evasive  answer,  amounts  in  many  cases  to  a 
positive  answer,  because  there  may  be  but  one  alternative :  if 
we  do  not  avow  the  one,  the  querist  will  know  that  we  avow 
the  other.  Have  we  in  this  case  the  right  of  denying  the 
truth,  arguing  always  under  the  supposition  that  the  querist 
has  no  right  to  ask,  or  to  force  the  truth  out  of  us,  or  that  the 
most  important  interests  of  others  depend  upon  our  secrecy 
and  that  the  other  has  no  right  to  expect  truth  at  our  hands  ? 
Suppose  (and  this  case  might  easily  take  place)  that  secret 
preparations  for  a  war  of  defence  against  an  unlawful  invader 
or  a  conqueror  are  going  on  in  our  country,  and  we  are 
asked  by  one  to  whom  we  deny  the  right  to  ask,  or  the  pro- 
jecting invader  himself,  whether  such  preparations  are  going 
on.  Or  a  constable,  in  disguise  to  catch  a  murderer,  is  asked 
by  a  person  to  whom  it  would  be  the  height  of  folly  to  ac- 
knowledge his  design,  whether  he  is  looking  out  for  the  pur- 
sued criminal.  Or,  as  a  great  philosopher  has  put  the  question, 
if  our  friend  flies  to  us  for  protection  against  murderous  pur- 
suers, we  hide  him,  and  they  enter,  asking,  "  Is  your  friend 


448  POLITICAL  ETHICS. 

hidden  here  ?"  '    It  seems  evident — though  it  was  not  so  in  the 
latter  case  to  that  philosopher — that  we  are  not  only  at  liberty, 
but  bound,  to  deny;  for  otherwise  those  who  have  no  right 
to  ask  and  connect  evil  purposes  with  their  question  would 
have  the  supremacy  over  the  honest  part  of  the  community, 
even  though  we  might  decline  answering,  because  we  give 
them  the  power  of  ascertaining  the  truth,  which  is  the  sole 
purpose  of  their  asking.     That   they  receive  an   evasive  or 
wrong  answer  is  solely  their  fault,  as  in  cases  of  murderous 
attacks  it  is  the  assassin  who  has  to  accuse  himself  alone  for 
the  wounds  which  he  may  receive  by  the  attacked  person. 
To  avoid  being  misunderstood  on  so  important  a  point,  I  shall 
remark  here  only  that  society  is  kept  together  by  communion, 
and  communion  consists  in  a  very  great  degree  of  question 
and  answer.     Every  man  therefore  has,  I   take  it,  a  natural 
right   to  put  any  fair  question,  and  every  man  the  general 
duty  to  answer  it  in  the  spirit  of  veracity.    There  is  no  neces- 
sity of  a  specific  right  to  put  a  question,  but  on  the  contrary 
there  must  be  a  specific  reason  which  authorizes  me  to  decline 
answering.     I  am  bound  by  natural  law,  it  seems  to  me,  to 
answer,  if  I  am  asked  whether  this  be  the  right  road  to   such 
a  place,  and  of  course  to  answer  in  the  spirit  of  veracity;  for 
natural  law  teaches  me  that  man  is  bound  to  live  in  society, 
and  he  therefore  must  depend  upon  others  and  others  must 
depend  upon  him. 

We  arrive,  then,  at  the  following  conclusions : 

If  the  interrogator  has  no  right  to  ask  and  connects  evil 

designs  with  his  questions,  and  if  a  mere  refusal  to  answer 

would  be  tantamount  to  a  direct  answer,  or  would  in  no  way 

remove  impending  danger,  and  most  especially  if  the  interests 


■  Kant,  in  an  Essay  on  the  supposed  Right  of  Lying  on  the  Ground  of  Philan- 
thropy, in  vol.  vii.  of  the  Leipsic  edition  of  1838.  Kant  insists  upon  it  that  in  this 
case,  as  in  any  other,  we  must  say  the  truth,  and  betray  our  friend.  Benjamin 
Constant  is  of  the  opposite  opinion.  [The  author's  cases  are  extreme  ones,  and 
the  admission  that  a  lie  in  extreme  cases  is  justifiable  is  extremely  dangerous, 
because  the  line  cannot  be  drawn  between  such  and  others.  Moreover,  if  you 
may  lie,  why  not  swear  to  it  ?  why  not  take  any  means  to  procure  credence  ?] 


POLITICAL  ETHICS.  449 

of  others  depend  upon  us,  we  have  the  right,  and  in  many- 
cases  the  duty,  on  the  principles  of  justice  and  necessary  de- 
fence of  right  against  wickedness,  to  disappoint  the  querist, 
even  by  misleading  him  through  our  answers,  as  we  would 
be  bound  to  mislead  a  gang  of  criminals  who,  having  seized 
us,  command  us  to  show  them  the  way  to  a  house  which  they 
intend  to  rob,  or  the  inmates  of  which  they  mean  to  murder. 
Sir  Walter  Scott  went  much  farther.' 

Secondly,  if  we  are  intrusted  with  an  official  secret,  under 
oath  of  office,  by  a  person  who  has  a  right  to  charge  jis  with 
a  secret,  which  involves  that  in  doing  so  he  must  be  in  his 
lawful  sphere,  and  the  secret  itself  must  be  lawful,  not  wicked, 
selfish,  or  personal,  and  if  we  are  asked  respecting  the  secret 
by  a  person  who  has  no  right  to  ask  or  to  expect  an  answer, 
if  declining  to  answer  would  be  tantamount  to  an  answer,  and 
if  the  importance  of  the  secret  warrants  the  exception,  for  in- 
stance that  our  country  is  for  the  moment  destitute  of  means 
for  defence,  we  are  bound,  as  official  persons,  not  to  divulge 
the  secret,  either  directly  or  indirectly.  Otherwise  ministers 
or  ambassadors  might  at  any  moment  be  forced  to  betray 
transactions,  the  most  essential  and  noblest,  of  their  own 
country,  to  an  evil-designing  antagonist ;  and,  as  it  would  be 
the  necessary  consequence  of  all  abandonment  of  self-defence 
that  the  wicked  would  rule  over  the  honest  and  triumph  over 
freedom,  so  it  would  be  the  effect  in  this  case. 

This  is  not  using  bad  means  for  good  purposes,  or  sanc- 
tioning the  means  by  the  purpose ;  for,  as  will  presently  be 


'  Speaking  in  his  Autobiography  of  his  having  published  the  Waverley  Novels 
anonjTHously,  and  the  great  curiosity  in  the  public  to  know  their  author,  he  says 
that  not  unfrequently  he  was  directly  asked  as  to  the  supposed  authorship,  and 
that  he  must  either  have  surrendered  his  secret,  which  no  one  had  a  right  to  in- 
sist upon  knowing ;  or  he  must  have  equivocated,  which  might  have  exposed  him 
to  a  suspicion  of  desiring  to  be  considered  the  author,  without  being  so;  or  he 
must  have  stoutly  denied  the  fact,  which  latter  he  chose,  refusing  to  give  his  own 
evidence  to  his  own  conviction.  He  flatly  denied  all  that  could  not  be  proved. 
If  I  am  not  mistaken,  either  he  or  Lockhart  mentions  that  he  stoutly  denied 
the  authorship  to  the  prince  regent  at  dinner,  when  interrogated  by  him  on 
the  subject. 

29 


450 


POLITICAL  ETHICS. 


shown,  the  agreement  of  words  with  reality  does  not  consti- 
tute in  all  cases  that  truth  which  is  of  eternal  obligation,  for 
instance  in  cases  where  that  agreement  is  avowedly  not  ex- 
pected, as  is  the  case  with  the  poet.  Nor  must  it  be  forgotten 
that  the  above  two  remarks  relate  only  to  defence  against 
evil  design  directed  against  us,  and  therefore  lend  no  shadow 
of  justification  to  equivocation  or  positive  lying  in  diplo- 
macy in  order  to  injure  others  or  benefit  ourselves,  not  being 
thrown  upon  our  necessary  defence  by  the  attacks  of  malig- 
nity. •  The  age  in  which  faithless  observance  of  treaties 
solemnly  sworn,  diplomatic  falsehood,  and  royal  mendacity, 
had  reached  their  highest  state,  may  have  been  the  age  of 
Charles  II.  and  Louis  XIV.;  those  two  paragons,  the  one  of 
worthless,  the  other  of  ruinous  and  criminal  kings.  It  is  ad- 
visable, therefore,  to  review  that  period  of  history,  in  order  to 
see  to  how  criminal  a  degree  all  right,  honor,  and  the  barest 
justice  may  be  abandoned,  if  the  principle  of  veracity  is  once 
set  aside  in  the  intercourse  among  nations,  or  of  governments 
with  individuals.' 

XXVIII.  The  reason  why  some  conscientious  men  have  In 
theory  denied  our  right  of  denial  of  facts — for  it  is  impossible 


'  To  have  any  idea  of  the  effrontery  and  reckless  mendacity  of  Louis  XIV.  it 
is  necessary  to  read  his,  correspondence  with  Count  Estrades,  his  ambassador 
near  the  United  Provinces,  in  Lettres  et  Memoires,  9  vols.,  Hague,  1743,  or  such 
works  as  Basnage  and  all  that  relates  to  the  great  De  Witt.  Charles  II.,  having 
concluded  the  triple  alliance  with  the  Low  Countries  and  Sweden,  in  1668, 
chiefly  to  oppose  the  conquering  spirit  of  Louis  XIV.,  declared  that  it  was  an 
offence  against  him  and  a  blot  on  his  reputation  to  propagate  the  rumor  that  he 
could  attach  himself  to  France,  and  made  the  most  solemn  protestations  to 
De  Witt,  while  he  and  his  ministers  were  already  receiving  bribes  from  Louis. 
Raumer  justly  observes,  in  his  History  of  Europe,  vol.  vi.  p.  48,  "  There  may  be 
cases  and  moments  when  another  has  no  right  to  demand  the  full  truth,  or  when 
pronouncing  it,  opposite  to  criminals,  may  cause  the  ruin  of  the  noblest  plans  ; 
but  when  the  free  king  of  a  noble  people,  contrary  to  his  advantage,  honor,  and 
pledged  word,  deceives  with  lies  his  faithful  allies  imder  the  mask  of  amiable 
candor,  and  in  the  pay  of  the  unrighteous,  it  is  an  infamy  so  loathsome  and 
condemnable  that  no  wrong  of  a  private  person  can  be  compared  to  it,  and 
no  censi:re  appears  too  hard." 


POLITICAL  ETHICS. 


451 


to  carry  it  through  in  practice ;  or  would  any  one  betray  his 
child  on  the  weak  and  abstract  obh'gation  of  truth  towards 
murderers  ? — is  owing  to  the  danger  to  which  its  admission 
seemed  to  expose  (although  by  no  means  a  greater  one  than 
its  denial)  and  to  a  want  of  distinction  between  the  appear- 
ance and  spirit  of  truth.  As  to  the  first,  no  one  can  deny  it ; 
we  must  admit  that  our  decision  depends  upon  our  judgment 
of  the  right  which  he  who  asks  has  to  ask,  and  the  wicked- 
ness of  his  purpose — subjects  which  any  person  desirous  of 
dissembling  may  easily  imagine.  But  though  dangerous,  and 
though  liable  to  be  perverted  by  disingenuous  persons  or  by 
our  own  interested  views,  it  is  no  more  so  than  a  thousand 
other  truths,  which  strictly  depend  upon  the  honesty  of  our 
purpose.  We  have  in  no  case  moral  rules  which  for  each 
practical  case  are  absolute;  we  have  always  to  judge  and 
weigh.  Yet,  although  dangerous,  it  is  infinitely  better  boldly 
to  approach  the  truth  and  state  its  precise  character,  than 
to  give  abstract  rules  which  cannot,  and  every  one  feels  ought 
not  to  be  applied.  So  is  the  desire  of  wealth  dangerous  and 
easily  degenerates  into  covetousness.  Yet  it  is  infinitely 
better  to  pronounce  at  once  that  under  proper  restraints  it  is 
a  laudable  desire,  salutary  in  a  high  degree  for  society,  than 
to  teach  that  wealth  is  absolutely  to  be  despised,  while  the 
whole  civilized  world  and  all  states  act  and  have  always  acted 
upon  different  principles.  I  know  of  no  error  which  unsettles 
morality  more  effectually  than  an  apparent  theoretical  consist- 
ency at  the  expense  of  other  and  equally  imperative  demands 
of  duty,  and  which,  therefore,  does  not  stand  the  test  of  reality, 
where  the  problem  is  not  to  act  out  one  single  principle,  un- 
concerned about  everything  else,  but  to  do  truly  and  essen- 
tially our  duty  in  all  the  many  complex  cases  daily  occurring 
in  practical  life.  I  repeat,  however,  for  my  young  readers, 
that  I  have  spoken  here  of  cases  of  exception,  that  the  spirit 
of  veracity,  the  main  conservative  of  private  life  and  the  first 
of  all  demands  in  science  and  religion,  is  of  equally  primary 
importance  for  the  essential  and  lasting  prosperity  of  a  nation, 
both  in  domestic  and  foreign  relations.    What  has  been  stated 


452 


POLITICAL  ETHICS. 


here  has  been  prompted  by  a  desire  to  diminish  hypocrisy,  a 
vice  no  less  frequent  nor  dangerous  in  poHtics,  and  especially 
in  those  of  free  countries,  than  in  religion  ;  by  a  desire  can- 
didly to  state  the  truth. 

XXIX.  We  must  remember  that  the  essential  truth  con- 
tained in  words  does  not  solely  depend  upon  the  form  of  the 
words,  but  upon  their  true  spirit.'  If  a  jury  bring  in  a  verdict 
of  not  guilty,  they  do  not  mean  to  say  that  the  criminal  is  abso- 
lutely not  guilty  of  the  crime  with  which  he  has  been  charged, 
but  that  he  is  not  guilty  in  the  sense  which  these  words  have 
and  ought  to  have  in  court,  according  to  the  circumstances  and 
evidence.  Nay,  more.  Lord  Mansfield  charged  juries  to  find 
the  prisoner  guilty  of  having  stolen  an  article  of  value  under 
twenty  shillings,  though  it  was  manifestly  worth  much  more, 
because  another  verdict  would  have  brought  the  prisoner  to 
death,  a  punishment  of  excessive  cruelty,  considering  all  the 
accompanying  circumstances.  What  then  did  this  verdict 
mean,  disagreeing  as  it  did,  according  to  the  letter,  with  the 
facts  ?  It  meant  that  the  prisoner  ought  not  to  die  according 
to  the  eternal  justice  in  man's  heart,  which  precedes  and 
supersedes  all  enacted  justice;  according  to  the  truth  of  the 
law,  which  is  to  punish  crime,  not  commit  enormity;  which 
is  for  the  welfare,  not  for  the  ruin,  of  society ;  according  to 
those  principles  out  of  which  men  will  not  and  ought  not  to 
allow  themselves  to  be  reasoned  by  form  or  technicality.  It 
is  the  spirit  of  words,  not  that  which  I  arbitrarily  or  fraudu- 
lently supply,  but  which  they  ought  to  have  in  the  spirit  of 


'  This,  it  will  be  observed,  means  something  entirely  different  from  mental 
reservation,  which  is  intentional  lying,  and  of  which  I  have  spoken  in  the  Her- 
meneutics.  Rut  take  the  following  instance  :  A  wishes  to  draw  on  B  and  to  sell 
the  dral't  to  C ;  C,  not  knowing  A,  says,  "I  will  send  the  draft  to  B,  and  the 
moment  it  is  accepted  you  shall  have  the  money."  A  agrees,  but  that  the  draft 
be  what  it  ought  to  be,  he  must  insert  the  words  "  Value  received."  Although 
he  does  this  in  writing,  and  although  he  has  not  received  the  value,  the  whole  is 
no  lie.  It  is  a  case  in  which  the  form  of  words  differs  from  the  essence  of  tnith, 
according  to  which  the  former  are  entirely  in  order. 


POLITICAL  ETHICS. 


453 


truth,  which  decides  their  truth,  and  real  meaning,  not  their 
form.' 

The  subject  is  so  grave  a  one  that  the  reader  must  permit 
me  to  dwell  for  one  moment  longer  upon  it.  Kant,  in  the 
previously  cited  passage,  speaks  of  the  absolute  demand  of 
truth,  which  according  to  him  forbids  us  to  deny  the  presence 
of  a  friend  in  our  house  to  his  interrogating  murderer.  The 
whole  essay  seems  to  me  to  be  inconsistent,  from  a  desire 
of  consistency.  Kant  restricts  his  remarks  upon  truth  to 
speaking,  to  words  only,  and,  secondly,  he  does  not  men- 
tion the  case  in  which  I  believe  the  unanimous  voice  of 
mankind  admits  the  right  to  pronounce  words  which  dis- 
agree with  fact ;  I  mean  the  case  of  a  physician,  who  for 
medical  reasons  may  be  bound  to  deceive  the  patient  respect- 
ing his  own  state  of  health,  or  some  news  which  would 
greatly  injure  the  patient;^  or  when  children  put  questions 
to  their  parents  a  positive  answer  to  which  would  be  of  great 
moral  injury  to  the  youthful  mind.  If  the  parent  gives  an 
answer  which  if  correctly  understood  would  convey  truth, 
but  understood  as  it  must  be  by  the  child  does  not  convey 
the  truth,  it  amounts  evidently  to  deceiving.  Why,  however, 
does  the  philosopher  dwell  on  deceiving  by  words  only?  If 
I  escape  in  disguise  from  evil  persons,  do  I  not  positively  de- 
sire to  make  a  wrong  impression  upon  their  minds,  and  is 
this  not  speaking  an  untruth  to  them  ?  When  Louis  XIV", 
harassed  the  Huguenots  to  dea.th,  were  they  not  allowed  to 
escape  in  disguise,  and,  had  passports  then  existed,  would 
the  most  pious  member  of  them  have  tarnished  his  purity  by 
travelling  under  a  false  passport  ?  But  does  not  a  written  pass- 
port speak  ?  Do  I  not  say,  by  showing  this  name  noted  down. 
This  name  is  mine  ?  Under  what  class  must  we  bring  the 
case  of  writing  under  an  assumed  name  in  order  to  escape  the 


'  Lieber's  Legal  and  Political  Hermeneutics,  where  more  on  this  subject  is  to 
be  found. 

^  [Many  physicians  deny  what  the  author  here  lays  down.  They  say  that  the 
belief  that  they  will  give  false  answers  about  the  health  of  patients  destroys  con- 
fidence in  them  when  they  tell  the  truth.] 


454 


POLITICAL  ETHICS. 


persecution  of  enemies?  Calvin  made  use  of  seven  different 
names  in  signing  his  letters,  for  instance  that  of  Espeville  in 
writing  to  the  duchess  Ferrara.  He  could  not  have  done 
it  otherwise,  and  undeniably  did  it  to  deceive  his  enemies. 
Was  Quentin  Durward  wrong  in  passing  the  young  count- 
ess of  Croye  as  the  daughter  of  Pavilion,  to  save  her  from 
the  brutal  grasp  of  De  la  Marck  ?  That  the  spirit  of  truth 
decides,  and  not  its  form,  appears  clearest,  perhaps,  in  the 
case  of  poets.  They  are  not  charged  with  falsehood  for 
stating  things  as  having  really  happened  which  have  never 
existed.  Why  are  they  thus  allowed  to  state  in  absolute 
terms  what  is  not  true,  with  perfect  impunity?  Because  no 
one  expects  them  in  that  case  to  speak  the  truth,  at  least 
no  well-informed  person,  and  we  allow  the  poet  even  to  de- 
ceive those  who  believe  his  statements  ;  for  instance,  chil- 
dren. In  this  case,  then,  we  do  not  expect  the  truth ;  the 
case  which  I  have  put  is  still  stronger.  The  querist  ought  not 
to  expect  the  truth,  because  he  acts  wickedly. 

If  I  have  not  found  the  precise  truth,  let  others  state  their 
views,  but  let  us  not  either  pass  over  the  subject  in  silence,  or 
state  rules  with  an  absoluteness  with  which  no  one  does  or 
can  carry  them  out,  and  which  necessarily  produces  therefore 
that  evil  which  invariably  follows  the  acknowledgment  of  a 
moral  rule  in  theory  and  its  frequent  disregard  in  practice. 
Let  us  draw  our  lines  distinctly,  for  indistinctness  in  moral 
delineations  is  dangerous. 

I  cannot  conclude  this  discussion  without  recurring  once 
more  from  the  exception  to  the  rule,  as  grateful  to  the  heart 
of  an  honorable  man  as  the  other  is  painful.  The  obligation 
of  veracity  is  not  only  great  respecting  each  case  in  particular, 
but  more  so  still  in  a  general  point  of  view;  for  falsehood  is 
poison  to  individuals  and  nations;  it  weakens  the  soul,  self- 
respect,  and  consequently  energy.^ 


'  Lord  Russell  might  perhaps  have  saved  his  life,  and  himself  for  his  loving 
wife,  a  woman  M'ho  had  shown  herself  so  faithful,  so  great,  that  every  man  not 
entirely  void  of  feeling  would  certainly  do  all  in  his  power  for  her,  by  signing  a 
declaration  that  he  had  changed  his  opinions  upon  the  lawfulness  of  resistance 


POLITICAL  ETHICS. 


455 


XXX.  The  subject  of  honesty  applied  to  matters  of 
moneyed  value  deserves  likewise  especial  attention  in  polit- 
ical ethics.  I  propose  to  offer  under  this  head  a  few  remarks 
also  on  liberality,  worldly  independence,  desire  of  wealth,  dis- 
regard of  riches  and  poverty,  with  respect  to  their  effects  in 
ancient  and  modern  times. 

Wealth  of  itself  is  not  necessarily  a  benefit  to  the  possessor. 
"  No  more  is  liberty,  or  health,  or  strength,  or  learning," ' 
or  beauty,  skill,  courage,  shrewdness,  or  experience.  Every 
one  of  these  blessings  or  qualities,  unconnected  with  other 
essentials,  has  become  at  times  the  cause  or  promoting  auxil- 
iary of  suffering,  vice,  or  crime  ;  so  in  turn  has  poverty  or 
disregard  of  wealth.  In  a  general  view,  however,  the  desire 
of  wealth  and  especially  of  a  competency,  that  is,  of  possess- 
ing a  fair  share  in  the  goods  of  this  world,  is  not  only  harm- 
less, but  laudable,  and  its  being  general  is  a  necessary  ele- 
ment of  national  prosperity.  By  this  I  do  not  mean  the 
acquisition  of  public  treasures  and  forces  at  the  disposal  of 
government,  but  a  healthful,  vigorous,  and  industrious  state 
of  all  classes,  absence  of  abject  poverty,  and  of  an  oppressive 
concentration  of  riches  in  a  few.  Without  a  generally  diffused 
and  wholesome  desire,  not  a  craving,  for  wealth,  there  can 
exist  no  general  desire  of  independence,  one  of  the  very  ele- 
mentary principles  of  practical  and  sound  civil  liberty;  from 
which  a  manly  love  of  freedom  and  a  faithful  devotedness  to 
our  country  gush  forth  with  a  vigor  and  fulness  more  free  and 
enduring  than  from  any  other  source. 


in  extreme  cases.  His  friends,  two  clergymen,  urged  him  to  do  it,  because  they 
themselves  perhaps  believed  that  this  opinion  was  wrong  (though  Burnet,  one  of 
them,  must  have  changed  his  opinion  not  long  after) ;  he  was  quit  with  his  per- 
secutors, who  had  sentenced  him  upon  perjured  testimony  and  afler  unjust  trial : 
yet  it  related  to  his  inmost  conviction,  which  he  could  not  and  would  not  belie. 
His  soul  revolted  at  the  lie  as  such,  and  not,  as  clearly  appears,  because  he  was 
too  proud.— Life  of  William  Lord  Russell,  by  Lord  John  Russell,  3d  ed.,  Lon- 
don, 1820,  vol.  ii.  ch.  xvi.,  and  Appendix,  p.  265. 

'  I  think  that  Archbisho,)  Whatelyha;  tre  ted  the  morality  of  the  desire  of 
wealth  with  justice  and  lucidness  in  his  Intro  luctory  Lectures  on  Political  Econ- 
omy,  London,  1831,  especially  in  the  id  Lect  !re. 


456  POLITICAL  ETHICS. 

Desire  of  wealth,  in  the  sense  in  which  it  is  taken  here, 
does  not  exclude  frugality,  the  contentedness  with  the  worldly 
means  at  our  disposal,  and  the  conscientious  regulation  of  our 
expenses  according  to  them.  Frugality  forms  one  of  the 
several  social  elements  which  are  indispensably  necessary  for 
the  continuance  of  civil  liberty,  and  without  which  it  is  im- 
possible to  maintain  it,  however  long  its  forms,  such  as  that 
of  a  representative  apparatus,  may  continue.  The  most  im- 
portant of  these  social  elements  appear  to  me  to  be,  frugality, 
with  habits  of  industry;  a  strong  sense  of  justice,  and  not 
of  oppression,  be  it  in  parties  or  classes,  government  or  indi- 
viduals ;  honesty,  reliance,  and  love  of  independence. 

So  soon  as  the  majority  of  a  people  cease  to  be  in  a  state  of 
substantial  independence,  eagerly  maintaining  it  or  honestly 
striving  for  it,  so  soon  will  appear,  below,  a  large  abject  class 
of  submissive  paupers,  and  above,  a  turbulent  or  arrogant 
class  of  a  few  powerful  proprietors,  who  indeed  may  harass 
government  or  extort  great  franchises  for  themselves,  but 
must  always  produce  a  state  of  things  incompatible  with  a 
healthy,  vigorous,  lasting,  and  not  precarious  civil  liberty, 
bearing  within  itself  the  energy  to  maintain  itself  With- 
out this  love  of  independence  there  can  be  no  general  high 
standard  of  comfort,  without  this  no  general  industry.  We 
have  seen  already  in  this  volume  how  universal  and  inborn 
the  desire  of  property  is,  a  principle  indelibly  impressed  on 
the  human  soul,  because  indispensably  necessary  for  the  sup- 
port and  advancement  of  society  and  civilization.  Covetous- 
ness  is  not  necessarily  connected  either  with  general  wealth 
or  a  universal  desire  for  it ;  on  the  contrary,  we  find  covet- 
ousness  much  more  universal  and  in  a  more  hideous  form 
with  poor  and,  especially,  uncivilized  tribes,  than  with  those 
nations  which  have  advanced  in  civilization.  If  we  sacrifice 
other  essential  interests  to  the  desire  of  wealth,  then  indeed 
it  becomes  ruinous  or  vicious;  but  in  this  the  desire  of  wealth 
does  not  differ  from  any  other  legitimate  desire.  Few  things 
can  be  more  innocent  in  themselves  than  a  desire  of  health, 
yet  individuals  have  existed  who  have  sacrificed  children  be- 


POLITICAL  ETHICS. 


457 


cause  it  was  believed  that  their  blood  would  restore  a  sickly- 
body.  What  indeed  is  more  lawful  and  necessary  for  the 
foundation  of  the  state,  and  even  for  the  existence  of  man- 
kind itself,  than  the  attachment  subsisting  between  the  two 
sexes  ?  yet  what  has  led  and  is  daily  leading  to  more  vices 
and  crimes  than  this  primary  principle  in  the  order  which  the 
Maker  prescribed  to  his  world  ? 

XXXI.  Yet,  although  we  were  to  take  a  different  view  of 
the  beneficial  effects  of  the  desire  of  wealth,  in  general,  and 
to  believe  that  it  ought  to  be  prevented  by  institutions  were 
we  to  begin  anew — a  view  of  things  which  it  will  be  remem- 
bered is  inadmissible  if  the  opinions  I  have  sought  to  estab- 
lish in  a  former  part  of  this  volume  are  granted  as  sound — for 
us  as  we  now  exist,  since  the  accumulation  and  diffusion  of 
wealth  have  taken  place,  and  since  nations  have  started  on  the 
path  of  civilization  and  do  not  and  cannot  remain  stationary, 
no  alternative  is  any  longer  left.  Knowledge,  industry,  and 
civilization  do  exist,  and  no  greater  bane  can  befall  society 
than  their  existence  in  a  nation  in  which  a  large  class  is 
nevertheless  excluded  from  them.  They  then  become  the 
very  incentives  and  hot-beds  of  vice  and  crime.'     We  want, 


*  It  may  not  seem  gracious  to  quote  one's  own  words,  but  if  an  author  has 
previously  written  on  a  subject  which  in  a  subsequent  discussion  he  must  discuss 
again,  and  he  has  at  first  expressed  his  thoughts  as  well  as  he  is  able,  I  do  not 
see  how  he  can  avoid  it.  I  may  be  permitted  therefore  to  repeat  here  in  a  note 
a  few  words  of  a  pamphlet  of  mine  which  was  published  some  years  ago  by  the 
Philadelphia  Prison  Society  on  the  Relation  between  Education  and  Crime, 
especially  as,  from  its  nature,  it  cannot  be  in  the  hands  of  many.  As  the  third 
reason  why  diffusion  of  knowledge  is  necessary,  with  reference  to  a  diminution  of 
crime,  I  said,  "  There  are  no  individuals  more  exposed  to  crime  than  the  igno- 
rant, in  a  civilized  community;  or,  in  other  words,  those  individuals  who  are 
touched  by  the  wants  and  desires  of  civilization,  or  by  the  effects  of  general 
refinement,  without  being  actually  within  the  bosom  of  civilization. 

"  It  is  on  this  latter  point  that  I  greatly  rest  my  opinion  of  the  necessity  of 
universal  education  with  the  European  race.  Civilization  exists  with  us;  we 
cannot  stop  it,  even  were  we  desirous  of  doing  so ;  and  the  outward  effects  of 
civilization  without  knowledge  are  the  greatest  bane  that  can  befall  any  class  or 
individual.  Ignorance  without  civilization  is,  no  peculiar  source  of  crime  ;  igno- 
rance with  civilization  is  an  unbounded  source  of  crime,  both  because  it  lessens 


45  S  POLITICAL   ETHICS. 

then,  among  other  things,  general  education,  be  it  general  by 
private  means  or  by  public  general  school  systems.  But  edu- 
cation, by  whatever  of  these  means  it  may  be  promoted,  re- 
quires wealth.  Books,  schools,  teachers,  colleges  and  univer- 
sities, the  support  of  men  who  may  freely  and  undisturbedly 
give  their  whole  time  to  the  pursuit  or  diffusion  of  knowledge, 
be  this  as  teachers  or  as  individual  votaries  of  the  highest 
branches  (which  are  far  from  being  mere  luxuries,  but  are 
like  the  luminary  of  the  heavens,  at  the  same  time  shedding 
light  and  vivifying  the  earth  beneath),  require  genefal  wealth 
directly  as  well  as  indirectly,  on  account  of  the  time  during 
which  those  that  learn  or  teach  cannot  be  engaged  in  the 
actual  production  of  subsistence. 

In  this  as  in  various  other  particulars  relating  to  wealth, 
our  situation  differs  materially  from  that  in  which  the  ancients 
found  themselves.  The  amount  of  knowledge  which  existed 
in  the  more  primitive  stages  of  mankind  was  such  that  a  citi- 
zen might  acquire  that  share  which  prevented  him  from  sink- 
ing below  the  general  level,  with  comparative  ease ;  it  could 
be  orally  transmitted,  in  a  great  measure,  both  because  it  was 
limited  and  the  citizens  communed  with  one  another  in  the 
open  air  or  the  market.  We  have  to  learn  first  of  all  to  read, 
write,  and  cipher,  without  which  we  are  entirely  debarred 
from  the  general  course  of  civilization,  but  with  which  we 
have  acquired  as  yet  nothing  but  the  merest  instruments. 
Every  branch  of  knowledge,  those  necessary  for  the  citizen 
at  large  included,  has  vastly  expanded;  and  requires  patient 
study,  which,  again,  requires  time.  The  ancient  states — I 
speak  of  the  free  and  best,  not  indeed  of  those  vast  empires 
in  the  East,  which  were  in  a  constant  process  of  transformation 
— were,  as  we  have  seen,  city  states,  in  which  the  citizens 
could  orally  commune  on  their  far  less  difficult  questions  of 


the  means  of  subsistence  and  lowers  the  individual  in  the  general  and  his  own 
esteem — it  severs  him  from  the  instructed  and  educated.  Instances  are  afforded 
to  us  in  the  lowest,  most  ignorant,  and  destitute  classes  in  all  large  cities,  or  in 
some  frontier  tribes,  who  receive  certain  views  and  notions  of  civilization,  and 
yet  live  without  education  and  instruction." 


POLITICAL  ETHICS. 


459 


politics  ;  ive  are  in  want  of  newspapers,  reports,  and  books,  to 
weigh  justly  our  politics,  which  to  the  blessing  of  mankind 
become  daily  more  the  questions  of  mutual  compromise,  of 
poising  each  other's  rights,  and  hence  less  absolute  or  aut- 
archical,  but  more  complicated.  The  accumulation  of  wealth, 
that  is,  the  saving  and  storing  of  labor,  has  increased;  this, 
together  with  the  infinitely  greater  population  of  modern 
states  and  brisker  industry,  has  greatly  elevated  the  common 
standard  of  comfort.  A  pauper  in  England  receives  among 
other  things  an  allowance  of  tea ;  a  private  soldier  is  furnished 
with  comforts  in  food  and  clothing  of  which  the  ancients 
knev/  nothing.  Ancient  civilization  was  in  its  character 
Southern,  an  out-door  civilization,  if  I  am  permitted  to  use 
the  expression ;  modern  civilization  is  Northern,  an  in-door 
civilization,  ever  since  the  stream  of  civilization  has  run 
among  the  Northern  tribes.  All  these  circumstances  have 
contributed  to  elevate  the  standard  of  comfort,  and  to  make  a 
degree  of  wealth,  by  way  of  property,  or  periodical  remunera- 
tion for  skill  or  knowledge  as  wages,  or  salaries,  more  desirable, 
indeed  necessary.  Merely  to  maintain  a  respectable  position 
— I  do  not  speak  of  a  positively  influential  one — a  consider- 
able share  in  the  national  wealth  is  necessary.  A  man  must  be 
able  to  dress  himself  and  his  family  with  propriety,  and  to  keep 
his  home  neat,  merely  not  to  sink  below  the  common  level, 
or  to  commune  with  others,  without  which  he  cannot  share 
in  the  common  stock  of  civilization.  A  man  in  antiquity 
might  contrive  to  live  in  a  tub,  and  yet  be  styled  a  philoso- 
pher;  in  modern  times  he  would  be  taken  up  under  the  va- 
grant law :  it  was  possible  to  teach,  in  ancient  times,  walking 
from  place  to  place  ;  a  teacher,  to  have  any  influence  now  and 
to  promote  seriously  and  conscientiously  the  cause  of  knowl- 
edge, not  merely  to  obtain  money  from  the  curious,  must 
have  at  least  a  respectable  station,  though  he  may  be  poor, 
and  honorably  poor,  in  so  far  as  this  applies  to  the  actual 
possession  of  property. 

XXXII.  Desire  of  wealth,  then,  not  desire  of  riches,  is 


46o  POLITICAL  ETHICS. 

salutary  as  a  national  impulse  and  is  not  immoral  in  the 
individual  ;  but,  before  all,  a  generally  diffused  desire  of  inde- 
pendence is  an  absolute  requisite  for  free  and  moral  action — 
moral  and  mental  independence  within,  and  independence  re- 
specting social  relations  without.  The  latter  may  be  attained 
in  two  different  ways,  either  by  acquiring  the  worldly  means 
of  independence,  in  property,  trade,  or  salary,  or  by  lopping 
off  our  wants,  to  satisfy  which  only  we  desire  the  former.  The 
latter  can  be  carried  to  but  a  limited  degree  in  modern  times, 
for,  as  was  said,  though  a  man  were  to  resign  all  luxuries 
and  expensive  gratifications,  he  would  still  be,  in  modern 
times,  very  dependent  without  any  means ;  he  could  not  in- 
form himself  on  the  most  important  subjects  of  the  times,  and 
would  be  excluded  in  a  very  great  measure  from  intellectual 
intercourse.  Instances  strongly  illustrating  this  position  are 
not  wanting  in  the  literary  history  of  the  latest  times.  But 
though  the  desire  of  accumulated  wealth  is  unimpeachable, 
and  many  of  the  noblest  of  mankind  have  possessed  it  to- 
gether with  an  elevated  spirit  of  liberality  and  true  independ- 
ence of  mind,  it  is  nevertheless  true  that  very  frequently  a 
total  absence  of  it  is  the  accompaniment  of  nobly-fashioned 
souls,  of  patriots  and  statesmen  as  well  as  the  votaries  of 
science,  the  arts,  or  religion.  There  is  no  general  obligation 
to  pursue  wealth ;  all  that  can  be  demanded  upon  ethical 
grounds  is  the  endeavor  to  make  ourselves  independent ;  if 
we  are  so  and  feel  so  with  small  means,  and  if  we  can  serve 
our  species  better  by  pursuing  other  branches,  at  the  entire 
expense  of  the  pursuit  of  wealth,  be  it  so;  but  it  is  important 
to  observe  that  upon  every  consideration,  private  or  political, 
it  is  necessary  to  keep  ourselves  free  of  debt,  and  not  to  live 
upon  the  bounty  or  support  of  others,  in  whatever  form  it  may 
be  proffered.'  Being  in  debt  is  very  apt  to  hamper  free  action, 
to  destroy  the  necessary  freedom  of  judgment  and  buoyancy 


'  This  does  not  include  a  fair  contribution  on  the  part  of  the  fellow-citizens 
after  a  public  man  has  sacrificed,  in  times  of  danger,  his  private  means  for  the 
public  good. 


POLITICAL  ETHICS.  461 

of  mind,  when  the  "  res  angusta  domi"  weighs  upon  the  mind, 
and  the  man,  as  private  citizen,  magistrate,  representative,  or 
leader,  feels  dependent,  straitened,  and  cramped  in  his  vote  or 
any  other  political  action.  Not  a  few  statesmen  have  been 
prevented  from  boldly  and  honestly  taking  that  course  which 
their  genius  or  inmost  and  genuine  bias  of  soul  and  sympathy 
pointed  out  to  them,  solely  because  they  were  indebted,  first 
in  a  pecuniary  way,  and  consequently  by  way  of  gratitude  or 
decency,  to  those  who  assisted  them.  It  is  not  necessary  that 
they  actually  sell  their  better  judgment:  the  worst  effect  of 
continued  straitened  circumstances  is  that  they  affect  uncon- 
sciously even  the  nobler  minds.  Nor  is  it  necessary  to  men- 
tion here  how  much  influence  there  is  always  and  necessarily 
attached  to  the  possession  of  substantial  property  or  to  a  suf- 
ficiency yielded  by  a  profession  in  the  community  in  which 
we  live.  All  its  members  feel  that  in  weal  and  woe  we 
are  entirely  one  with  them.  As  to  the  establishment  of  a 
family,  a  competency  is  still  more  desirable.  Still,  there  are 
most  noble  souls  in  whom  this  element  is  so  entirely  want- 
ing that  they  alienate  all  worldly  means  so  soon  as  they  flow 
to  them.  They  ought  then  to  force  themselves  the  more  in 
some  manner  or  other  to  contrive,  if  not  to  collect  wealth  or 
riches  (for,  being  against  their  nature,  it  would  only  harass 
them  in  turn),  yet  surely  to  save  so  much  as  is  necessary  to 
keep  them  free  from  obligations  to  others.  Yet  so  noble  is  it 
to  be  liberal,  that  the  community  will  always  be  inclined  to 
look  indulgently  upon  such  a  man  ;  while  the  fault  on  the 
other  side,  meanness,  infallibly  ruins  a  man  in  the  esteem  of 
his  fellow-citizens,  and  justly  so.  For,  while  disregard  of 
wealth,  even  in  an  injudicious  degree,  may  and  frequently 
does  co-exist  with  the  best  qualities  of  the  soul,  which  indeed 
not  unfrequently  are  the  first  cause  of  it,  meanness  is  the  cause 
and  effect  of  a  hundred  other  low  qualities  of  soul,  against  all 
of  which  even  excessive  liberality  is  a  proof  and  evidence. 
The  almost  unexampled  influence  which  Pitt  certainly  did 
enjoy,  and  by  which  he  ruled  England  in  a  period  of  the 
greatest  difficulty,  was  essentially  aided  and  supported  by  the 


462  POLITICAL  ETHICS. 

perfect  conviction  which  all  England  had  of  his  disinterested- 
ness in  money  matters,  and  that  while  he  made  peer  after  peer, 
while  he  appointed  others  to  the  most  lucrative  offices,  and 
millions  passed  through  his  hand,  he  was  known  to  be  neither 
extravagant  nor  ever  even  easy  in  circumstances,  a  situation 
which  could  only  remain  unembarrassing  to  so  gifted  a  mind. 
Whatever  may  be  the  judgment  which  we  feel  called  upon  to 
pass  in  calm  reflection,  still  we  feel  constrained  to  respect  his 
disinterestedness,  when  we  read  that  this  premier  of  the 
wealthiest  nation  on  the  earth  was  giving  a  political  dinner  to 
the  ambassadors  and  high  functionaries  up-stairs,  while  below- 
stairs  an  officer  was  waiting  to  lay  hands  on  him  for  debt; 
especially  if  we  remember  that  Pitt  was  in  possession  of  a 
profession  to  which  he  would  have  recurred  if  turned  out  of 
office,  and  that  he  might  have  been  wealthy  had  he  not  sacri- 
ficed all  private  considerations.'  We  must  also  remember 
that  the  people  knew  that  the  embarrassments  of  Pitt  were 
not  caused  by  prodigality,  or  dissoluteness  in  gaming  or 
otherwise.  When  the  king  of  France  offered  two  rich  abbeys 
to  Richelieu,  which  had  belonged  to  one  of  his  enemies,  he 
said,  though  I  own  he  was  then  rich,  and  in  his  position  at 
that  time  could  not  well  avoid  becoming  so,  "  My  ambition 
aims  higher,  at  a  place  in  universal  history."  There  is  hardly 
a  history  of  the  first  French  revolution  in  which  mention  is 
not  made  that  after  the  arrest  of  Robespierre  a  few  pieces  of 
money  only  were  found  in  his  bureau,  nor  was  he  possessed 
of  other  property.  Even  his  crimes,  great  as  they  are,  we 
feel  might  have  been  increased  had  he  added  avarice  to  them, 
as  some  of  his  companions  in  guilt  actually  did.  How  edify- 
ing are  those  accounts  of  the  ancients,  Epaminondas,  Philo- 
pcemen,  Fabricius,  and  many  others,  upon  whom  the  offer  of 
wealth  or  their  own  poverty  had  no  sort  of  influence!  How 
cheering  is  the  life  of  Pym  also  in  this  respect !  He  died 
without    any   property,   having    sacrificed   all    his    time    and 


'  Wraxall  gives  several  remarkable  anecdotes  of  this  trait  in  Pitt,  in  his  Post- 
humous Memoirs  of  His  Own  Times. 


POLITICAL  ETHICS.  463 

energy  to  his  country,  and  parliament  had  to  pay  the  small 
amount  of  debt  which  he  left.  Compare  these  examples  of 
freedom  from  sordidness  with  those  favorites,  of  whom  history 
mentions  so  many,  who  used  the  ascendency  they  acquired 
over  weak-minded  monarchs,  to  accumulate  riches,  however 
illegally,  unrighteously,  or  cruelly  gotten,  and  to  make  every 
one  of  their  kindred  participate  in  their  plunder. 

The  rule,  then,  for  a  public  man,  or  one  who  feels  a  calling 
to  become  such,  in  a  free  country  in  modern  times,  seems  to 
me  this : 

Keep  yourself  independent,  which  includes  first,  as  a  matter 
of  course,  a  total  discarding  of  that  silly  and  little-minded 
desire  to  rival  your  rich  neighbor  in  his  way  of  living,  and 
secondly,  that  you  should  be  possessed  of  the  means  of  main- 
taining yourself,  be  this  by  the  possession  of  a  moderate 
property  or  a  profession  or  trade  (Spinoza  was  a  glass- 
grinder)  ;  and,  that  these  means  may  be  easily  acquired  (for 
otherwise  you  would  not  feel  independent),  reduce  your  wants 
to  the  lowest  degree  compatible  with  a  continued  communion 
with  your  fellow-beings,  by  way  of  intercourse  with  your 
neighbors,  and  by  way  of  books  with  the  distant  and  dead, 
on  the  one  hand,  and  a  decorous  but  modest  maintenance  of 
your  family  and  the  sound  education  of  your  children,  on  the 
other. 

XXXIII.  The  desire  of  wealth  being  natural,  and  especially 
so  in  modern  times,  we  must  most  scrupulously  guard  our- 
selves against  its  excess,  in  its  various  forms  and  manifesta- 
tions, meanness,  covetousness,  dishonesty,  and  whatever  other 
evils  or  vices  arise  from  it.  In  every  light  in  which  we  may 
view  the  subject,  it  urgently  demands  our  undivided  attention. 

All  nations  have  abhorred  peculation,  by  which  we  may 
understand,  in  its  widest  sense,  the  abuse  as  well  as  the  pur- 
loining of  public  property,  and  which  may  consist  in  using, 
for  a  limited  period,  public  funds  or  property  for  private  ends, 
in  purloining  and  robbing  them,  and  in  the  abuse  of  official 
information  for  private  gain.     I  am  not  aware  that  the  latter 


464  POLITICAL  ETHICS. 

has  ever  been  comprehended  within  the  term  peculation, 
though  it  is  punishable  according  to  several  codes.  But,  philo- 
sophically speaking,  it  is  certainly  a  species  of  peculation ; 
for  it  belongs  to  the  same  class  of  dishonest  actions,  springing 
from  the  same  immoral  source,  with  the  crime  of  peculation 
properly  so  called.' 

Excessive  ambition,  excessive  attachment  to  kinsmen  or 
friends,  nepotism,  excessive  party  attachment,  excessive  shame 
to  confess  wrong,  excessive  love  of  action,  all  have  become  at 
times  injurious  to  the  state,  and  may  most  seriously  disturb 
its  essential  prosperity;  but  none  of  all  these  passions  can  be 
compared  in  their  baneful  effects  to  public  dishonesty.  All 
the  former  may  still  co-exist  with  some  redeeming  qualities; 
we  may  think  even  of  conspirators  against  their  country,  im- 
pelled by  criminal  ambition,  not  without  feeling  horror  indeed, 
yet  without  actual  loathing,  but  we  cannot  so  regard  a  band 
of  peculators.  Peculation  presupposes  meanness  and  total 
degradation,  which  do  not  absolutely  belong  to  the  ambitious 
conspirator.  A  man  who  commits  knowingly  wrong  for 
money,  who  sells  himself,  has  been  considered  the  most  abject 
of  evil-doers,  and  may  be  supposed  ready  to  commit  all  the 
evil  acts  of  the  others  besides  his  own  crime.  So  soon  as 
covetousness  becomes  general  in  a  civilized  nation,  so  soon 
as  dishonesty  is  a  general  crime,  so  soon  as  public  places 
are  considered  by  common  consent  as  fair  opportunities  to 
enrich  their  holders,  willing  to  wink  at  each  other's  em- 
bezzlements, so  soon  as  parties  consider  themselves  by  their 
success  entitled  to  the  spoils  of  the  public — so  soon  there 
is  a  deadly  cancer  in  the  vitals  of  that  society,  and  hardly 
anything  but  severe  changes  and  revolutions  can  save  it. 
Justice  will  be  sold,  bribes  become  common,  public  opinion 
become   vicious,  veracity  will  be   disregarded,  patriotism  be 


^  It  is  certainly  oiie  of  the  worst  because  most  unprincipled  kinds  of  peculation, 
if  government  favor  private  persons  with  information,  or  early  knowledge  of 
messages,  etc.,  because  they  belong  to  the  same  party.  The  most  criminal  abuse 
of  power,  however,  in  this  province  is  if  a  minister  or  other  officer  spreads  false 
news  to  raise  or  depress  certain  funds  for  private  speculation. 


POLITICAL  ETHICS. 


465 


derided,  every  memory  of  greatness  or  nobleness  be  dis- 
graced, oppression  in  every  degree  become  general,  and  the 
moral  tone  of  society  at  large,  which  must  always  remain 
the  first  spring  from  which  public  prosperity  flows,  will 
vanish.  The  history  of  the  period  of  Charles  II.  furnishes  a 
melancholy  example;  bribed  judges,  lists  of  members  of  par- 
liament paid  by  the  French  ambassador,  and,  to  crown  all,  a 
king  in  the  traitorous  pay  of  the  greatest  enemy  of  his  own 
country.*  The  history  of  France  before  and  during  the  first 
revolution,^  the  history  of  Italy,  the  history  of  Spain,  of  Por- 
ttjgal,  all  prove  the  same.  Peculator  after  peculator  was  sent 
from  the  mother-country  to  the  colonies  of  the  peninsula,  and 
the  consequence  even  now  is  the  low  moral  tone  and  endless 
misery  in  the  republics  of  South  America.  No  history,  how- 
ever, is  perhaps  so  impressive  on  this  subject  as  that  of  Rome 
from  the  second  Punic  war,  and  especially  under  the  emperors, 
and  of  Athens. 3  Individuals  are  exposed  to  follies  or  criminal 
imprudence  if  they  do  not  take  heed  of  past  misfortunes 
brought  on  by  faults  of  their  own  ;  nations  do  the  same  if 
they  neglect  their  own  history,  or  that  of  other  states,  which 
exhibit  a  warning  with  awful  solemnity  such  as  is  contained 
in  Roman  history.-* 


'  Among  other  works,  the  Diary  of  Samuel  Pepys,  London,  1825,  deserves  to 
be  read  on  this  account. 

2  Montesquieu  dwells  upon  the  universal  dishonesty  and  covetousness  as  one 
of  the  greatest  evils  of  France.  The  memoirs  of  all  the  different  reigns  show  this 
vice  in  a  frightful  degree.  Nothing  strikes  the  reader  of  the  memoirs  ascribed 
to  Sully  so  much,  besides  the  glorious  relation  between  two  great  men  like  Henry 
and  Sully,  as  the  rank  poison  of  universal  rapacity  through  the  whole  leading 
class  of  the  nation,  from  the  prince  of  the  blood  to  the  counsellor  of  parliament 
or  farmer  of  the  taxes. 

3  "  The  desire  of  gain  destroyed  all  sense  of  equity."  Boeckh,  Public  Econ- 
omy of  Athens,  London,  1838,  vol.  ii.  p.  129.  Alliens  suffered  fearfully  in  con- 
sequence of  the  lavish  dibtribution  of  public  money  by  the  poi)ular  leaders,  partly 
obtained  by  excessive  fines  and  confiscations  by  bribes  and  by  exactions  from 
foreigners.     As  above,  vol.  ii.  p.  1 14,  and  many  other  places. 

4  Sismondi,  History  of  the  Fall  of  the  Roman  Empire,— part  of  Lardner's 
Cabinet  Cyclopedia;  but,  before  all,  Gibbon's  History  of  the  Decline  and  Fall 
of  the  Roman  Empire.     It  is  a  melancholy  fact  indeed  that  Gibbon  is  little 

30 


466  POLITICAL  ETHICS. 

XXXIV.  A  general  argument  by  which  pubhc  defaulters 
endeavor  to  appease  their  conscience  or  to  present  themselves 
in  a  less  guilty  light  before  others,  if  detected,  is  that  no  one 
feels  their  robbery,  the  amount  being  but  a  trifling  sum  for 
the  state;  thus  making  the  immorality  of  the  act  rest  alto- 
gether on  its  momentary  effect.  Society,  however,  does  feel 
it,  for  common  dishonesty  is  a  moral  dissolvent.  Yet  even 
were  it  not  so,  could  the  dishonest  act  never  be  discovered, 
is  the  defiling  of  his  own  mind,  his  own  soul,  the  admission 
of  shamelessness  and  dishonor,  nothing?  Is  he  not  injured 
by  it  ?  does  he  not  rob  much  more  from  himself  than  from 
the  public  ?  Is  he  not  a  criminal  in  his  own  conscience,  and 
a  greater  criminal  the  higher  the  trust  that  was  placed  in 
him,  and  the  less  he  was  pressed  by  actual  want  or  corrupted 
by  contaminating  society  ?  The  crime  of  defaulters  generally 
is  far  worse  and  more  pernicious  to  society  than  theft. 

The  danger  of  peculation  is  the  greater,  the  freer  a  state 
is,  not  only  because  the  greater  liberty  requires  the  greater 
morality  for  its  support,  but  because  the  more  despotic  a 
monarchic  state  is,  the  more  is  government  concentrated  in 
one  visible  person.  Peculation,  consequently,  is  considered 
and  punished  as  actual  robbery  of  the  monarch's  personal 


read  now ;  general  observation  would  lead  one  to  the  conclusion ;  it  is  a  fact 
likewise  confirmed  by  the  booksellers.  They  sell  but  few  copies  in  the  United 
States,  compared  to  what  they  did  but  fifteen  years  ago ;  how  it  is  in  England  I 
do  not  know.  This  is  much  to  be  regretted.  So  mighty  an  empire  ought  not  to 
have  crumbled  into  dust,  with  so  many  crimes  and  such  unspeakable  suffering 
for  centuries,  without  our  heeding  it.  In  the  decline  of  Rome  we  see  a  large 
and  most  remarkable  state  in  a  state  of  maceration.  The  physiologist  derives 
some  of  his  most  important  knowledge  of  the  sound  body  from  the  diseased ;  the 
deranged  functions  and  pathologic  anatomy  aid  him  in  arriving  at  a  true  knowl- 
edge of  the  healthy  state ;  the  philosopher  of  the  mind  derives  valuable  instruc- 
tion from  observing  the  insane;  the  anatomist  learns  the  organization  of  the 
living  body  from  the  dead  :  so  also  is  it  in  politics.  The  disturbed  functions  of 
bodies  politic  teach  us  how  sound  ones  operate.  Nations  passed  by  are  our  sub- 
jects ;  they  lie  still  under  the  scalpel,  and  we  may  inquire  with  a  mind  unaffected 
by  influences  of  the  present  times. 

Or  is  Gibbon  so  little  read  on  account  of  his  skepticism?     I  hope  not:  it 
would  betray  very  little  confidence  in  the  power  of  truth. 


POLITICAL  ETHICS. 


467 


property;  it  acquires  much  more  the  character  of  common 
roguery  and  theft.  The  freer  a  state  is,  however,  the  less 
personal  and  the  more  national  becomes  the  government;  the 
personal  image  vanishes.  Royal  property  in  England  appears 
justly  much  more  as  national,  as  public  property  than  in 
Russia;  and  in  America  public  funds  are  the  property  of  an 
entirely  invisible  thing,  of  the  United  States.  Persons  there- 
fore who  have  paid  little  attention  to  moral  principles,  in 
whom  strict  morality  has  not  on  account  of  itself  been  instilled 
in  early  youth,  feel  less  reluctance  to  rob  this  invisible  institu- 
tion called  state,  or  invisible  body  called  public,  than  they 
would  feel  perhaps  in  robbing  an  individual  monarch.  Be- 
sides, the  freer  a  nation,  the  more  impediments  there  are  in 
the  way  of  arbitrary  justice,  on  which  the  defaulter  calculates, 
while  in  despotic  governments  the  arm  of  power  reaches  such 
a  criminal  without  the  intervening  obstacles  carefully  raised 
to  protect  possible  innocence. 

In  ancient  times  there  was  greater  opportunity  of  pecula- 
tion, on  account  of  the  less  thorough  organization  of  the  ad- 
ministrative part  of  government,  and  the  comparatively  feeble 
control  at  least  of  distant  officers,  owing  in  part  to  the  more 
general  want  of  skill  in  writing  and  of  cheap  and  common 
writing-materials.  But,  on  the  other  hand,  there  is  greater 
temptation  to  peculation  in  modern  times,  because  wealth  is 
more  generally  desirable ;  money  has  a  greater  value,  consider- 
ing what  we  may  obtain  for  it;  and  the  easy  intercommuni- 
cation between  distant  countries,  as  well  as  the  more  extended 
credit,  owing  to  greater  security,  gives  to  money  altogether  a 
much  more  intense  action.  The  meaning  of  money  has  con- 
siderably changed ;  speculating  at  present  is  an  action  which 
may  attract  an  active  mind  of  itself.  All  these  circumstances 
are  so  many  inducements  to  an  individual  of  lax  principles  to 
seize  upon  what  does  not  belong  to  him,  not  unfrcqucntly 
with  the  hope  of  replacing  'the  money;  especially  in  periods 
when  at  times  whole  nations  are  bewildered  with  a  frantic 
covetousness  and  feverish  desire  of  becoming  rich  and  rapidly 
so,  not  by  labor,  exertion,  careful  combination,  and  patience, 


468  POLITICAL  ETHICS. 

but  by  speculation,  however  fictitious,  mad,  or  even  fraudu- 
lent, or  playing  at  chance.  It  was  such  a  period  when  the 
whole  British  public  seemed  to  be  seized  with  an  anxiety  to 
embark  in  any  even  the  most  egregiously  foolish  enterprises, 
at  the  time  of  the  so-called  South-Sea  scheme;'  such,  too, 
has  been  the  feverish  period  which  we  ourselves  have  lately 
passed  through  in  the  United  States — a  period  the  evil  effects 
of  which  will  be  observed  by  the  careful  and  attentive  long 
after  the  superficial  shall  see  all  former  prosperity  restored. 

If,  therefore,  frauds  in  public  funds  have  taken  place — for 
they  cannot  be  entirely  avoided,  since  it  is  impossible  to  know 
thoroughly  every  one  who  is  to  be  trusted  in  public  service — 
the  whole  society  is  deeply  interested  in  eradicating  the  evil 
as  far  as  possible.  In  the  best  society  the  most  enormous 
crime  may  be  committed.  It  is  the  act  of  the  individual.  But 
if  the  society,  from  laxity  of  principle  and  public  moral 
feeling,  allows  the  crime  to  pass  unpunished,  it  becomes  the 
crime  of  all.  So  with  public  criminal  defaulters.  If  society 
omits  to  punish  them,  if  the  people,  finding  their  officers  lax 
or  unwilling  to  punish  these  crimes,  do  not  rise  in  indigna- 
tion and  call  with  one  voice  for  the  trial  of  the  offenders,  they 
make  the  act  their  own.  It  is  pusillanimous  and  most  injuri- 
ous to  punish  the  actual  defrauder  or  peculator  only,  and  not 
the  higher  and  highest  officers  who  by  guilty  indulgence  or 
neslect  of  ricrid  control  have  contributed  their  share  in  inflict- 
ing  this  wound  upon  the  vitals  of  the  state.  In  this  case,  as  in 
others,  we  must  not  forget  that  the  more  extensively  we  may 


*  Anderson's  History  of  Commerce.  He  gives  a  list  of  the  schemes,  some  of 
which  appear,  now,  so  ludicrous,  if  we  can  forget  the  general  calamity  of  the 
country  at  the  time,  that  we  should  almost  discredit  him,  had  we  not  seen  very 
similar  things  in  our  times,  when  "  lots"  in  cities  were  sold  at  high  prices, 
although  of  the  cities  nothing  but  the  name  and  perhaps  the  incorporating  act 
existed,  while  the  aboriginal  trees  were  yet  standing  in  their  majesty  upon  the 
intended  spot,  and  wasted  their  example  of  lofty  yet  slow  and  patient  growth 
upon  the  maddened  multitude  at  the  distance,  who  thought  that  villages  and 
towns  might  spring  up  with  the  same  rapidity  with  which  the  painted  villages 
are  said  to  have  been  erected  at  a  distance  from  the  road  on  which  the  empress 
Catherine  of  Russia  travelled  through  the  Crimea. 


POLITICAL  ETHICS.  469 

produce  a  good  effect  by  one  legitimate  punishment,  the  more 
it  is  our  duty  to  punish,  and  that  punishing  one  high  person 
has  a  more  impressive  effect  in  public  morals  than  punishing 
many  lower  officers.  Impeachments  of  ministers  are,  if  just 
and  true,  sound  and  highly  beneficial  exercises  of  the  power 
which  the  constitutions  of  free  countries  trust  to  the  hands  of 
the  representatives.  They  consolidate  liberty  and  stamp  the 
history  of  a  country  with  that  warning  seriousness  without 
which  one  of  its  best  elements  is  missing. 

XXXV.  If  a  spirit  of  dishonesty  in  the  officers  is  immoral 
and  detrimental  to  the  prosperity  of  the  commonwealth,  it 
is  but  little  less  so  if  there  is  a  similar  spirit  of  robbing  the 
public  in  the  citizens  at  large.  The  truer  a  government  in  its 
character,  that  is,  the  more  directly  or  materially  it  tends  to 
the  common  benefit,  the  greater  is  the  wrong  against  our 
fellow-citizens  committed  by  fraudulent  avoidance  of  the  pay- 
ing of  taxes,  or  any  other  dishonest  act  against  the  public. 
At  the  same  time,  it  is  perfectly  clear  that  the  more  tyrannical 
or  iniquitous  a  government  is,  the  more  it  maintains  itself 
by  force,  and  the  more  grinding  its  own  oppressive  and  rob- 
bing character  is,  the  more  a  citizen  becomes  absolved  from 
that  conscientious  frankness  and  spontaneous  co-operation  in 
supporting  the  government,  which  form  the  pride  and  vital 
energy  of  good,  free,  and  wisely-conducted  governments.  An 
upright  man  cannot  be  expected  not  only  to  pay  cheerfully 
his  taxes,  but  to  pay  them  with  a  voluntary  co-operation 
on  his  part,  if  he  sees  the  money  wrung  from  the  sweating 
laborer  not  only  uselessly  squandered  but  actually  spent  for 
iniquitous  purposes,  such  as  the  maintenance  of  mistresses 
and  favorites  branded  with  infamy,  or  the  oppression  or  per- 
.secution  of  the  innocent.  I  do  not  discuss  here  the  subject  of 
refusing  taxes.  This  belongs  to  the  province  of  obedience  to 
the  laws  and  resistance  ;  here  we  have  to  weigh  only  how  the 
citizen  ought  to  act  when  he  thinks  there  is  not  yet  sufficient 
reason  for  resistance,  or  when  it  would  be  too  dangerous 
an  experiment,  or  on  whatever  other  ground  he  docs  not 


470  POLITICAL  ETHICS. 

resist.  It  would  appear  just  and  reasonable,  as  a  general  prin- 
ciple, that  the  more  a  government  deviates  from  its  true  aim, 
namely,  the  common  good,  the  more  prodigal  or  iniquitous  it 
becomes,  the  less  is  a  citizen  bound  to  co-operate  on  his  part 
spontaneously  to  contribute  his  share ;  the  more  right  has  he 
to  leave  the  whole  to  those  who  have  the  power,  and  to  let 
them  make  out,  demand,  and  obtain  their  taxes  as  they  can. 
He  is  perfectly  justified  in  paying  as  little  as  possible,  even 
though  the  share  assigned  to  him  be  too  little  according  to 
the  principle  laid  down  by  government.  They  establish  it, 
they  have  the  power,  let  them  obtain  it.  This,  it  will  be  per- 
ceived, is  but  a  negative  action;  I  do  not  speak  of  fraud,  false 
statements,  etc. 

Different  from  the  above  is  smuggling.  Of  course  smug- 
gling by  way  of  false  entries,  perjury,  or  bribing  custom- 
officers  is  too  clear  a  case  of  ruinous  immorality  to  deserve 
any  farther  attention  respecting  the  ethic  principle  involved 
in  it.  As  to  its  baneful  consequences  and  the  general  state 
of  moral  degeneracy  which  it  requires  before  it  can  become 
general,  we  need  only  to  examine  the  state  of  things  in  such 
countries  as  China  or  Mexico,  to  be  fully  and  deeply  im- 
pressed with  the  evil.  A  man  does  not  easily  perjure  him- 
self or  allow  himself  to  be  bribed  at  once  or  in  one  particular 
sphere.  The  spirit  of  action  does  not  depend  upon  its  out- 
ward form,  but  springs  from  the  inner  original  source  of  moral 
feeling.  If  it  becomes  turbid,  the  impurity  will  flow  into 
other  actions  likewise.  But  the  question  is,  and  actually  has 
been  put  and  discussed,  whether  a  man  has  not  a  right  to 
smuggle,  or  otherwise  to  evade,  not  by  mere  omission  on  his 
own  part,  but  by  positive  action,  the  customs  levied  by  gov- 
ernment; provided  he  be  perfectly  willing  to  submit  to  the 
penalty  affixed  to  this  action  by  those  in  power  in  case  of 
detection.  Those  who  have  maintained  that  he  might,  have 
started  from  the  wrong  view  of  a  total  separation  of  the  gov- 
ernment from  the  society  over  which  it  rules.  We  have  seen, 
however,  that  the  state  is  natural,  essential,  and  necessary, 
and  that  government  is  but  the  means  and   contrivance  to 


POLITICAL  ETHICS.  47 1 

obtain  the  ends  of  the  state,  and  obedience  to  the  laws  is  of 
itself  a  general  duty. 

The  smuggler,  moreover,  robs  the  conscientious  part  of  the 
community,  because  as  far  as  the  goods  smuggled  by  him 
are  concerned  he  saves  the  tax  which  the  scrupulous  have  to 
pay  for  their  goods ;  he  declares  himself  in  opposition  not  to 
a  set  of  men  but  to  the  laws  of  his  country,  hence  more  or 
less  to  the  society  at  large  in  which  he  lives ;  he  must  accus- 
tom himself  and  his  whole  family  to  fraud  and  violence, — for 
it  is  but  futile  to  suppose  that  a  man  becomes  a  smuggler 
without  being  resolved  at  the  same  time  to  resist  violently  in 
case  of  detection  while  in  the  act  of  smuggling, — and  he  pre- 
vents that  easy,  even,  and  healthful  operation  of  the  laws 
which  is  one  of  the  fairest  attributes  of  a  well-governed 
country.  Experience  in  every  country  proves  our  position. 
Smugglers  by  trade  have  never  yet  been  found  otherwise  than 
a  highly  dangerous,  because  lawless  and  violent,  class. 

It  may  be  well  to  remember  here  what  was  said  at  the 
beginning  of  the  work,  that  in  a  moral  point  of  view  we  never 
can  act  through  another ;  we  either  act  or  suffer :  a  mean  is 
not  possible.  There  is  additional  baseness  in  the  action  if  we 
abet  and  aid  in  offences  but  have  not  the  courage  to  commit 
the  act  itself,  as  for  instance  there  must  be  always  sly  re- 
ceivers who  sell,  where  there  are  sturdy  smugglers  who  im- 
port. I  know  of  some  former  cases  of  piracy  in  the  West 
Indies — and  wherever  this  crime  is  committed  they  are  not 
rare — when  merchants,  apparently  fair  in  their  dealings,  re- 
ceived goods  obtained  by  piracy  and  had  previously  lent 
capital  to  the  pirates  to  lay  it  out  in  their  criminal  business, 
excusing  themselves  on  the  ground  that  they  had  never  been 
told  for  what  the  money  was  wanted  or  whence  the  goods 
came,  and  that  they  were  not  bound  to  inquire.  But  were 
they  not  ?  They  were  not  legally  bound  to  inquire,  but  they 
were  morally  bound  not  to  reject  from  their  minds  the  evi- 
dence which  was  forced  upon  it.  The  mere  words  and  out- 
ward act?  do  not  constitute  that  upon  which  the  morality  of 
man's  intercourse  with  his  fellow-men  depends. 


472  POLITICAL  ETHICS. 

Perhaps  it  niit^ht  yet  be  asked,  How  ought  we  to  act  under 
a  tyrannical  government  ?  Suppose,  what  has  happened  re- 
peatedly, an  unjust  government  imposes  so  heavy  a  tax  upon 
the  necessities  of  life,  for  instance  upon  salt  and  flour,  that  the 
poor  man  cannot  maintain  his  family ;  or  suppose  a  country 
is  conquered,  a  new  government  imposed  upon  it,  and  exor- 
bitant impost  taxes  levied,  as  was  the  case  during  the  con- 
tinental system  under  Napoleon — a  period  which  might  be 
called  the  classical  age  of  smuggling,  on  account  of  its  extent, 
refined  ingenuity,  and  daring.  In  this  case  the  question  be- 
comes, as  was  already  said,  wholly  a  question  of  obedience  to 
the  laws,  of  which  the  more  important  must  be  obeyed  before 
the  less  important.  Nor  do  unlawful  demands,  be  they  un- 
lawful in  themselves  and  demanded  by  lawful  authority,  or 
demands  by  unlawful  authority,  carry  with  them  the  obliga- 
tion of  laws.  Since  it  is  a  duty  to  avoid  giving  opportunity 
for  disobedience  to  law,  or  to  challenge  it  by  enacting  laws 
which  will,  according  to  the  nature  of  men,  infallibly  lead  to 
crime,  governments  are  morally  bound  to  avoid  legislation 
which  cannot,  as  society  is  constituted,  but  lead  to  smuggling 
— a  general  school  of  lawlessness.  These  are  amon^  the 
reasons  why  excises  and  import  taxes  are  so  much  to  be 
dreaded. 


END     OF     VOL.    I. 


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